May 1, 2014 --

"BAMN" is the shorthand way of referring to the United States Supreme Court case that has this caption
(caps in original): BILL SCHUETTE, ATTORNEY GENERAL OF MICHIGAN, PETITIONER v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRATION RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), ET AL.

"BAMN" obviously stands for "By Any Means Necessary." This poses some difficulty for LPR: achievement of social policy by "any means?"

In this case, six members of the Supreme Court decided that the voters of Michigan could amend the state's constitution to overturn actions by governing boards at state colleges that would permit what Justice Sonia Sotomayor, in dissent, calls "race-sensitive admissions policies."

LPR would note that Justice Sotomayor, in her footnote 2, acknowledged that there may be some constitutional difficulty with "affirmative action plans that confer preferential treatment intentionally and solely on the basis of race." (It is is not clear to LPR that Justice Sotomayor would have equal difficulty with quotas.)

Justice Sotomayor accused Michigan voters of having "changed the rules in the middle of the game," but does not state, in her 58-page dissent, when "the game" comes to an end. Justice Ruth Bader Ginsburg joined Justice Sotomayor in dissent. Justice Elena Kagan did not participate. LPR is surprised that Justice Stephen Breyer concurred in the Court's decision.. LPR wonders: did Justice Breyer conclude that if Chief Justice John Roberts could defer to the Democratic majority in Congress and make Obamacare a constitutional reality, he, Breyer, could defer to the voters of Michigan with a concurrence that had no direct impact on the Court's BAMN decision, but would provide a wider, 6 - 2, margin, instead of 5 - 3?

Justice Sotomayor relied, in part, on the Supreme Court's decision in Hunter v. Erickson, 393 U.S.385 (1969), where the Court threw out an Akron, Ohio amendment to the city charter requiring that a majority of voters must approve anti-discrimination housing ordinances. Justice Hugo Black was the sole dissenter in Hunter. He indicated in his dissent that having opposed the use of "substantive" due process to overturn legislation, he also opposed the use of "equal protection" as cover for judges to apply their personal preferences in overturning legislation.

Justice Antonin Scalia, in a dissent worthy of the counsel of Chief Justice John Marshall, in the concluding paragraph in his Gibbons v. Ogden opinion, commented, at the end of his concurring opinion: "In my view, any law expressly requiring state actors to afford all persons equal protection of the laws...does not--cannot--deny 'to any person...equal protection of the laws....'"

At the start of his concurring opinion, Justice Scalia asserted: "[W]e confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? LPR applauds Justice Scalia for his revisionist view of the "discrete and insular minorities" phrase in footnote 4 of United States v. Carolene Products, 304 U.S. 144. Of this footnote, Justice Scalia remarked: "We should not design our jurisprudence to conform to dictum in a footnote in a four-Justice [of seven] opinion."

Justice Sotomayor seems to raise this question in her dissent: In selecting a student body, why is it permissible for colleges to be sensitive to matters including geography, athletic prowess, and parents who are alumni, but not race? The "BAMN" case did not involve the issue whether preferential treatment to students of alumni denies equal opportunity to students whose parents are not alumni. indeed, may not have gone to any college. Is equal protection trampled when children of alumni, for example, are placed on the college-admissions fast track?

Justice Sotomayor's dissent suggests that the college admissions process will determine society's winners and losers. The Justice should know that there is at least one college graduate spending his Social Security years with the assistance of SNAP benefits, indeed, and whose poverty level status has got him suspended from the practice of law by the New York State authorities. True, he did not have clients, but this suspension bars him from his former pro bono service.