Even though the Supreme Court voted 6-2 to uphold Michigan's ban on affirmative action, New York Times's Supreme Court reporter Adam Liptak in his lead story in Wednesday's paper first quoted Justice Sonia Sotomayor's dissent, the "most passionate and most significant dissent of her career."
Liptak also promoted liberal ex-Justice John Paul Stevens's tirade against money in politics in a Tuesday interview, with the reporter lamenting that the Citizens United case -- in which the Court made the pro-free-speech ruling that government can't ban election spending by corporations -- had become "a judicial landmark."
In a fractured decision that revealed deep divisions over what role the judiciary should play in protecting racial and ethnic minorities, the Supreme Court on Tuesday upheld a Michigan constitutional amendment that bans affirmative action in admissions to the state’s public universities.
The 6-to-2 ruling effectively endorsed similar measures in seven other states. It may also encourage more states to enact measures banning the use of race in admissions or to consider race-neutral alternatives to ensure diversity.
States that forbid affirmative action in higher education, like Florida and California, as well as Michigan, have seen a significant drop in the enrollment of black and Hispanic students in their most selective colleges and universities.
In five separate opinions spanning more than 100 pages, the justices set out starkly conflicting views. The justices in the majority, with varying degrees of vehemence, said that policies affecting minorities that do not involve intentional discrimination should be decided at the ballot box rather than in the courtroom.
But Justice Sonia Sotomayor, in the longest, most passionate and most significant dissent of her career, said the Constitution required special vigilance in light of the history of slavery, Jim Crow and “recent examples of discriminatory changes to state voting laws.”
Liptak promoted a liberal angle on another issue, money in politics, in an interview in Tuesday's Times with the retired Justice John Paul Stevens, who is promoting a book that proposes liberal amendments to the Constitution like restricting guns and abolishing the death penalty: "Justice Stevens Suggests Solution for 'Giant Step in the Wrong Direction.'"
Justice John Paul Stevens, who turned 94 on Sunday, is a mild man with an even temperament. He has a reverence for the Supreme Court, on which he served for almost 35 years until his retirement in 2010, and he is fond of his former colleagues.
But there was a hint of anger in some of his remarks when I went to see him last week in his Supreme Court chambers. He said the court had made a disastrous wrong turn in its recent string of campaign finance rulings.
“The voter is less important than the man who provides money to the candidate,” he said. “It’s really wrong.”
He talked about what he called a telling flaw in the opening sentence of last month’s big campaign finance ruling. He filled in some new details about the behind-the-scenes maneuvering that led to the Citizens United decision. And he called for a constitutional amendment to address what he said was the grave threat to American democracy caused by the torrent of money in politics.
Last month’s decision in McCutcheon v. Federal Election Commission struck down aggregate contribution limits, allowing rich people to make donations to an unlimited number of federal candidates.
Chief Justice John G. Roberts Jr. started his controlling opinion with a characteristically crisp and stirring opening sentence: “There is no right more basic in our democracy than the right to participate in electing our political leaders.”
But that was misleading, Justice Stevens said. “The first sentence here,” he said, “is not really about what the case is about.”
Liptak later pondered the 2010 Citizens United ruling: "How that case was transformed from a minor, quirky case about a tendentious documentary into a judicial landmark has long been a source of mystery." (That "tendentious documentary" was the 2008 anti-Hillary Clinton produced by Citizens United.)
The draft dissent, which has not been made public, questioned the majority’s attempt to recast a modest case into a blockbuster that would overrule major precedents and allow unlimited campaign spending by corporations and unions.
The occasion for our talk was Justice Stevens’s new book, “Six Amendments: How and Why We Should Change the Constitution.” One of those amendments would address Citizens United, which he wrote was “a giant step in the wrong direction.”
The new amendment would override the First Amendment and allow Congress and the states to impose “reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”
At least Liptak offered some pro-free-speech pushback, at least when it came to the freedom of editorial boards like the liberal Times. Stevens didn't quite seem to grasp the import of his constitutional whims.
I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates. He stared at the text of his proposed amendment for a little while. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.”
Or perhaps not. His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates.
Justice Stevens said he would not go that far.
“Perhaps you could put a limit on the times of publication or something,” he said. “You certainly couldn’t totally prohibit writing a book.”
Well, thank goodness for that!