Toobin: ‘The Voters Here Effectively Overruled the Supreme Court’

BERMAN: "This is a big case and a big decision. It seems to me what the justices did here is lay out a road map to show states how do away with race admissions if they want to."
TOOBIN: "I think that's exactly what that he want to. And I think the real implication of today's decision is that affirmative action is going to be very much part of the political agenda now. Because as you say, the voters here effectively overruled the Supreme Court and said, 'look, you said we could have affirmative action, but we don't want it. And we're going to ban it.' And the Supreme Court today said 'that's OK, you can ban affirmative action.' So now the question is, what states, what voters, what state legislators will now try to do that in other states? And how will politicians defend and attack affirmative action?"
PEREIRA: "Yeah, it's going to be interesting the ramifications and implications could be quite broad. Now, there are some voices -- among them at the university of Michigan in Ann Arbor -- have criticized the ban saying, look, this makes it tough for us to have a diverse student body. What kind of resource do you think they have?"
TOOBIN: "Well, they, at this point, I think have no recourse at all other than to get the voter admission to change their mind. Because the Supreme Court basically agreed with the university of Michigan 11 years ago and said, 'yes, you can have affirmative action because we think those are legitimate goals.' But what the Supreme Court said today is 'well, you can have affirmative action, but you don't have to have affirmative action.' That if the state wants to overrule the decision of the university, that's up to the it's OK for the state to do that. So, as I said, this really returns the issue very much to the political arena and takes the decision away from the academics and the university administrators who have been making those decisions."
BERMAN: "And Jeffrey, this was a 6-2 decision with Justice Steven Breyer voting with the majority here. So what does that tell us?"
TOOBIN: "Well, that is certainly a divergence from the usual pattern we see in this court. There five Republican appointees, there are four Democratic appointees, and usually on very controversial constitutional issues they vote in lockstep. Alana Kagan was recused, she did not participate in this case. But Steven Breyer, who is one of the four Democrat appointees to the court, did vote with the more conservative members. And that's certainly a notable fact about today's decision."