Faculty Bibliography

In Schuette v. Coalition to Defend Affirmative Action, Justice Kennedy’s controlling plurality revised the political process doctrine and ended the practice of affirmative action in Michigan. In this opinion, Kennedy followed in the Court’s tradition of invoking antibalkanization values in equal protection cases, making the empirical claims both that antibalkanization motivated the campaign to end affirmative action in Michigan and that the campaign itself would, absent judicial intervention, have antibalkanizing effects. Using sophisticated empirical methods, this Article is the first to examine whether the Court’s claims on antibalkanization are correct. We find they are not. Support for the Michigan ballot initiative banning affirmative action arose principally from feelings of racial resentment, not a desire for racial comity. The ballot initiative did not mitigate racial divisiveness but did just the opposite, exacerbating racial division in the state. We conclude by considering what Schuette and these empirical findings mean for affirmative action, for the political process doctrine, and for the antibalkanization principle.

Structures of punishment are infused with anxiety about national belonging. Since the mid-1990s, governments in the United States, Australia, and much of Western F,urope have embraced the practice of immigration detention, building quasi-prisons for non-citizens at a breakneck pace (see Bacon 2005; Bosvvorth 2007; Kelly 2005; National Immigration Forum 2013)- Criminal justice systems have also warped under the pressure of border control. In the past five years alone, both the United States and the United Kingdom have established special prisons to hold foreign nationals serving criminal sentences (Guttin 2010; Greene & Mazon 2012). in Britain, non-citizens convicted of criminal offenses are transferred to prisons ‘embedded’ with border agents (Kaufman 2013). In the US, more than half of last year’s roughly 400,000 deportations started when a border agent entered a prison or a jail (American Immigration Council 2013).