But as compelling as it was, I’m not very confident that it’ll matter in the long run, because the tension between Roberts’ view and Sotomayor’s view is the same tension, fundamentally, among most Americans.
Mystal is right that voters don’t have to get rid of affirmative action “if they don’t want to,” but polls suggest that they want to. Last year an NBC News-Wall Street Journal poll found that only 45 percent of respondents think that affirmative action programs are still needed—a historic low—and Gallup found that only 28 percent think that race should be considered as a criterion in university admissions decisions.
So if the court is now leaving it all up to the discretion of the electorate, don’t be surprised to see more and more states copy what Michigan voters did in 2006, amending its constitution to say that state schools or agencies can no longer factor in “race, sex, color, ethnicity, or national origin” in admissions or contracting.
It won’t happen overnight—it’ll be death by a thousand cuts. But make no mistake about it: Schuette makes it possible—and probable—that affirmative action will die that slow death, at the hands of voters, without the court having to do anything else to kill it.
David Swerdlick is an associate editor at The Root. Follow him on Twitter.