CNN Legal Analysts: SCOTUS ‘Opened a Pandora’s Box’ on ‘Rights of Minorities’

‘The voters could — I don’t know, they could vote down so many other things that they don’t particularly like’

COSTELLO: "Seven other states have bans right now. And basically, Gloria, what the U.S. premium court ruled that Michigan had the right to change its state constitution and eliminate affirmative action. I kind of -- I found it interesting how Justice Anthony Kennedy put it. He said 'voters chose to eliminate racial preferences because they deem them unwise.' What did he mean by that?"
MARSHALL: "Well, I'm not quite sure how he's going to justify the majority rule on affirmative action and yet write the opinion in the cases involving marriage equality and say, basically, because of a procedural issue, that they couldn't get to the issue of whether or not the proposition voted on by the people which would have banned same-sex marriage was constitutional. Remember, that was thrown out for a procedural reason. So -- excuse me -- so now we're in a situation which if the majority rules how is that going to affect any minority group? Be those people of color, be those people of groups gay, or of any particular religious belief. I mean, it's opened pandora's box on the majority ruling on the rights of minorities via the amendment of the state constitution. So the procedure to amend the state constitution is the issue. The reason what they want to accomplish amending that state constitution is the major controversy in this case, it's affirmative action in the future may be anything."
COSTELLO: "Jonathan, do you agree with that?"
TURLEY: "Well, I do think there's a distinction that can be drawn with same-sex marriage. I think the way that Kennedy and others are viewing this is that the citizens said they didn't want any immutable characteristics to be used in terms of the selection of students. And they view that as a neutral law in the sense of making education available and the opportunities available for everyone. Now, there are a lot of very good reasons why you can object to that. There are many, including people within the Michigan educational system, that are saying that this is really going to gut the effort to get diversity in classes. But I do think that they can distinguish from same-sex marriage. I do think, though, that the Supreme Court has given opponents to the use of these criteria a very clear avenue to take the matter into their own hands. You know what I think is such a game-changer here is that in the past, all roads have led to the Supreme Court. the Supreme Court would make these decisions that were so controversial. This opinion is suggesting that voters actually can make this decision, that it is within their constitutional authority to say, we do not want immutable characteristic, whether race, or gender, or other issues, to be used in the selection of students for admission."
COSTELLO: "Interesting. So, Gloria, I hear you, so that I can really see what you're talking about now. The voters could -- I don't know, they could vote down so many other things that they don't particularly like, right? Which they do anyway."
MARSHALL: "Yes, if you think about any minority groups. And would point to women, and I understand from the Gruder case and of course Fischer from last year that we have a number of women, white women who are saying we should be in these particular positions and we're not being allowed to be in these particular positions. But this is also the 50th anniversary of the 1964 Civil Rights Act, which was not just for people of color, and these, it was also for nationalities and women were protected under title IV of the Civil Rights Act. And it seems as though there's this conflict now between the majority, 51 percent are women who are white, and these people of color, and we're all trying to squeeze through the same little crack in the opportunity door. And the Supreme Court is basically saying well, minority groups do have to kind of step back. You know, I think the people have the right, if the majority rules, it could include any people. Any -- as Jonathan pointed out -- any discernible characteristic that the people people may believe should be not taken into account in deciding schools today and who knows what it might be tomorrow. I think the concern is that the Supreme Court didn't really act as that last resort for people of minority groups."

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