The full 6th circuit court of appeals has struck down the Michigan Civil Rights Initiative by an 8-7 vote. This follows a three judge panel's 2-1 vote to strike it down last year, and a federal judge upholding it in 2008.
This decision will be appealed to the Supreme Court, which will soon decide another racial discrimination/affirmative action case from the University of Texas. It is possible that they will use this case to finally end affirmative action in this country.
The actual argument the court used to overturn the MCRI is ludicrous. Even the Detroit News and Detroit Free Press (!) agree on that point. They essentially say that the MCRI is too hard for minorities to overturn, which discriminates against them. This assumes that the position of minorities is to oppose equal treatment and support racial discrimination, which is not necessarily true.
Moreover, the MCRI was passed using the normal procedures for passing a constitutional amendment in Michigan. Opponents of any constitutional amendment have significant advantages, since undecideds mostly vote no. In addition, opponents significantly outspent supporters, most special interests (including the Chamber of Commerce), most politicians (including Dick DeVos and Mike Bouchard) and most newspapers opposed it. Despite all this, the MCRI passed 58%-42%, winning all but three counties.
Opponents of the MCRI could use exactly the same procedure to repeal it, if they could convince a majority of Michigan citizens to agree.
Compare this to the difficulty of overturning a judicial decision. If any procedure imposes extraordinary hurdles to overturning it, a judicial decision is it.
We should all wish good health for Justices Scalia and Kennedy. In the mean time, the Republicans in the Michigan legislature should pass the MCRI as a statute as well.
BY ANY MEANS NECESSARY