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12 682 tsacJudicialWatch

12 682 tsacJudicialWatch

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No. 12-682 THE 

Supreme Court the United States 
BILL SCHUETTE, MICHIGAN ATTORNEY GENERAL, 
Petitioner, 
COALITION DEFEND AFFIRMATIVE ACTION 
ETC., AL.,
 
Respondents. Writ Certiorari the United States 
Court Appeals for the Sixth Circuit 

BRIEF AMICI CURIAE JUDICIAL
 WATCH, INC. AND ALLIED EDUCATIONAL 
FOUNDATION SUPPORT PETITIONER
 
       Chris Fedeli 
Counsel Record 
Julie Axelrod JUDICIAL WATCH, INC.        425 Third Street, S.W., Ste. 800        Washington, D.C. 20024 
(202) 646-5172        cfedeli@judicialwatch.org
       Counsel for Amici Curiae 
Dated: July 2013 
LEGAL PRINTERS LLC, Washington 202-747-2400 legalprinters.com 
TABLE CONTENTS 

TABLE CONTENTS ............................................. 

TABLE AUTHORITIES ...................................... 

INTEREST AMICI CURIAE ................................1 

SUMMARY THE ARGUMENT ............................2 

ARGUMENT ...............................................................3
 CHANGED POLITICAL REALITIES MAKE THE 

POLITICAL RESTRUCTURING DOCTRINE 
OUTDATED...............................................................3 

II.
 POLITICAL RESTRUCTURING DOCTRINE CANNOT 

APPLIED AFFIRMATIVE ACTION ..........................9 

CONCLUSION..........................................................12 

TABLE AUTHORITIES 
CASES 
Boyton
 Virginia, 363 U.S. 454 (1960) .....................8 

Brown
 Board Education, 

347 U.S. 483 (1954)  ...............................................8
 
Coalition Defend Affirmative Action  
Regents the University Michigan, 
701 F.3d 466 (6th Cir. 2012)............................... 

Grutter
 Bollinger, 539 U.S. 306 (2003)  ................12 

Heart Atlanta Motel United States, 
379 U.S. 241 (1964)  ...............................................8 

Hunter
 Erickson, 
393 U.S. 385 (1969)  ...........................
 
Loving
 Virginia,  388 U.S. (1967)  ........................8 

Lucy
 Adams, 350 U.S. (1955)  .............................8 

Seattle
 Washington, 

458 U.S. 457 (1982)  ............................... 

Shelley
 Kraemer, 334 U.S. (1948)  .......................8
 
Whitus
 Georgia, 385 U.S. 545 (1967)  ....................8 

OTHER AUTHORITIES 
111 Cong. Rec., 21749, 21783 (1965) (Statement ofRep. Burton) ................................................................ 
Brief Amici Curiae Judicial Watch and Allied Educational Foundation, Fisher University Texas Austin, Case No. 11-345 (filed with U.S. Supreme Court May 29, 2012), available athttp://sblog.s3.amazonaws.com/wpcontent/uploads/2012/06/Final-11-345JudicialWatch-Brief.pdf. .............................................    
Scott Clement, Wide majority opposes race-based college admissions programs, Post-ABC poll finds, Washington Post, June 11, 2013, available http://www.washingtonpost.com/politics/pollmajority-opposes-race-based-college-admissionsprograms/2013/06/11/4aee6cf8-d2b9-11e2-8cbe1bcbee06f8f8_story.html.  .........................................  
Glenn Eskew, Barack Obama, John Lewis, and the Legacy the Civil Rights Struggle, American Studies Journal (2012), available athttp://www.asjournal.org/archive/56/208.html. ........    
International Encyclopedia the Social Behavioral Sciences, Population Composition Race and Ethnicity: North America, Table (2001, Elsevier Science Ltd.), available athttp://as.nyu.edu/docs/IO/1043/Pop.Comp.IESBS.2001.pdf. ...................................................................... President Lyndon Johnsons Commencement Address Howard University, To Fulfill These Rights, June 1965, available http://www.lbjlib.utexas.edu/johnson/archives. hom/speeches.hom/650604.asp.  ...............................  
Maimon Schwarzschild, Voter Initiatives and American Federalism: Putting Direct Democracy its Place, Public Law and Legal Theory Research  Paper Series, University San Diego School  Law, pp. 2-3 (Fall 2003).  .......................................... 
Neil Shah, More White Americans Dying Than Being Born, Wall Street Journal, June 13, 2013, available http://online.wsj.com/article/SB10001424127887324049504578541712247829092.html. .................. 
Laura Shrestha and Elayne Heisler, Congressional Research Serv., Report for Congress, RL34756, The Changing Demographic Profile the United States (2011), available athttp://www.fas.org/sgp/crs/misc/RL32701.pdf. ...... 
U.S. Census Bureau, State and County QuickFacts, 
U.S.A. QuickFacts from the U.S. Census Bureau, http://quickfacts.census.gov/qfd/states/00000.html (visited June 22, 2013)  ............................................... 
U.S. Census Bureau, Press Release, Most Children Younger than are Minorities, May 17, 2012,http://www.census.gov/newsroom/releases/archives /population/cb12-90.html ............................................ 

INTEREST THE AMICI CURIAE1 
Judicial Watch, Inc. (Judicial Watch) nonpartisan educational organization that seeks topromote transparency, accountability and integrityin government and fidelity the rule law.  Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and has appeared amicus curiae this Court number occasions. 
The Allied Educational Foundation (AEF) anonprofit charitable and educational foundationbased Englewood, New Jersey.  Founded 1964, AEF dedicated promoting education diverseareas study. AEF regularly files amicus curiae briefs means advance its purpose and has appeared amicus curiae this Court number occasions. 
Amici are concerned that the Sixth Circuits use the political restructuring doctrine propagate racial preferences Michigan violates the EqualProtection Clause the Fourteenth Amendment the U.S. Constitution. Amici are further concerned that the Sixth Circuits decision unlawfully limitsthe right the people make laws misusing  Pursuant Supreme Court Rule 37.6, amici curiae state that counsel for party authored this brief whole part and that person entity, other than amici curiae and their counsel, made monetary contribution intended fund the preparation and submission this brief.  The parties have consented the filing this brief.  Letters reflecting this blanket consent have been filed with the Clerk. 
outdated constitutional doctrine, and are concerned about the corrosive effect that decision American society and the rule law.  Among the harmscaused the Sixth Circuits decision are: dangerous erosion the peoples right democratic self-governance; the needless further enshrinement the intellectually impoverished concept race intolaw; the perpetuation culture racial and ethnic politics American public life; and the perpetuation racial and ethnic resentment and intolerance American society. For these reasons, amici urge the Court overturn the Sixth Circuitsdecision. 

SUMMARY THE ARGUMENT 
The Sixth Circuit unjustly deprived Michigans voters their right ban discrimination incorrectly invoking constitutional doctrine that nearly outdated the affirmative action policies was invoked support.  The Sixth Circuit was able arrive this conclusion through convoluted application outdated constitutional doctrine.  This doctrine, known political restructuring, derives from two cases, Hunter Erickson, 393 U.S. 385 (1969) (Hunter) and Washington Seattle Sch. Dist. No. 458 U.S. 457 (1982) (Seattle). However, rather than provide justification for the Sixth Circuits opinion, the results those cases show why the political restructuring doctrine cannot applied the Michigan law.  Hunter and Seattle relied the political reality racial majority and minority relations 1969 and 1982.  Those realities longer exist because the profound demographic and cultural changes that this nation has undergone inthe intervening years. noted Judge Gibbons her dissent below, declaring that the constitution insulates racial preferences from the political process flies in the face the core equal protection principle nondiscrimination and at odds with the basic meaning the Equal Protection Clause, understood and explained through decades jurisprudence.  Coalition Defend Affirmative Action Regents the University Michigan, 701 F.3d 466, 493-494 (6th Cir. 2012, Gibbons, dissenting) (Coalition).The decision presented marked departure fromprecedent: the first instance judicially mandated racial discrimination. Id. Furthermore, unlike the initiatives issue Hunter and Seattle, affirmative action today widely unpopular among voters all races, making this case unsuited for resolution under the political restructuring doctrine.  Both the political restructuring doctrine and its application affirmative action are judicially unjustifiable present day America.  The Court should find. 

ARGUMENT	 CHANGED POLITICAL REALITIES MAKE THE POLITICAL RESTRUCTURING DOCTRINE OUTDATED 
Political restructuring doctrine relies interpretation the Equal Protection Clause overturn state and local ballot initiatives intended make more difficult for racial minorities achieve political objectives. product the Court's1960s civil rights jurisprudence, the doctrine was designed for time when large white majorities would use the initiative process ways that allowed them exclude and discriminate against minority black populations. 2013, those white majorities are not only dramatically smaller due immigration, but have also grown more tolerant andaccepting others different races due the successes the civil rights movement.2 Political restructuring doctrine, novel legal concept beginwith, has now largely outlived its usefulness. the days the early civil rights movement, the racial composition the country was largely binary, with white majority and black minority.3 1960, the U.S. population was roughly 85% white avoid the use scare quotes throughout this brief, amici note that the concept distinct human races unscientific and inherently ambiguous social construct, and the need for amici refer different human races legal brief 2013 due only the unfortunate historical legacy the use the concept has left its wake.  See Brief Amici Curiae Judicial Watch and Allied Educational Foundation, Fisher University Texas Austin, Case No. 11-345 (filed with U.S. Supreme Court May 29, 2012), available http://sblog.s3.amazonaws.com/wpcontent/uploads/2012/06/Final-11-345-JudicialWatch-Brief.pdf. See Laura Shrestha and Elayne Heisler, Congressional Research Serv., Report for Congress, RL34756, The Changing Demographic Profile the United States (2011),  (Once, mainly biracial society with large white majority and relatively small black minorityand impenetrable color linedividing these groupsthe United States now society composed multiple racial and ethnic groups.), available http://www.fas.org/sgp/crs/misc/RL32701.pdf. 
and 10% black, which meant that all other races combined were less than the population.4 2011, after years non-discriminatory immigration policies, the U.S. population roughly 16% Latino, Asian, 13% black, and 63% white (nonLatino).5 
Furthermore, thirty years ago America stillhad recent history deliberate discriminatory mistreatment against minorities the political process. This history began with the institution slavery and continued with the perpetuation segregation laws, which lasted through the 1960s.The civil rights movement developed this context, and its goal was change race relations the United States and prevent racial discrimination. addition the impact the civil rights movement, changes immigration policy starting with the Hart-Cellar Act 1965 have since transformed American politics far beyond anything recognizableby the political restructuring doctrine courts the past.6 International Encyclopedia the Social Behavioral Sciences, Population Composition Race and Ethnicity: North America, Table (2001, Elsevier Science Ltd.), available http://as.nyu.edu/docs/IO/1043/Pop.Comp.IESBS.2001.pdf. See U.S.A. QuickFacts from the U.S. Census Bureau, State and County QuickFacts, available http://quickfacts.census.gov/qfd/states/00000.html (visited June22, 2013). The goal the Civil Rights Act was enforce nondiscrimination the way Americans interact with each other. The Hart-Cellar Act carried this non-discrimination principle into Americas immigration policy. Rep. Philip Burton (DCA) said the Bill: Just sought eliminate discrimina review Hunter and Seattle shows the significance the historical backdrop. Hunter, the city charter Akron was amended that ordinance protecting against racial discrimination housing could not used those was meant protect from discrimination without citywide referendum. 393 U.S. 385 (1969). The majorityelectorate Hunter wished protect their right toflagrantly discriminate based race.  The plaintiffin Hunter was woman who had been told real estate agent that she could not show her the houseson the list she had prepared for her because all ofthe owners had specified they did not wish their houses shown negroes. Id. 387. What was stake Hunter was individuals right beprotected from racial discrimination, because the core the Fourteenth Amendment the preventionof meaningful and unjustified official distinctionsbased race. Id. 391. Seattle, the voters Washington approved statewide initiative that prevented local school districts from busing schoolchildren for desegregation purposes. The initiative issue had been passed 66% the voters Washington State and 61% voters the city Seattle. The Court found that was case the majority denying the needs minority. The 1982 Seattle Court held 
tion our land through the Civil Rights Act, today seek byphasing out the national origins quota system eliminate discrimination immigration this nation composed the descendants immigrants. 111 Cong. Rec., 21749, 21783 (1965).  The passage these two laws has ushered profound changes the nation.   
that, although people both white well Negro benefit from policies which increase studentsexposure different races, at bottom [the policy] inures primarily the benefit the minority and isdesigned for that purpose.  458 U.S. 457, 472 (1982).As Hunter, the issue was classic civil rights-era confrontation between small black minority population and large white majority.   
Times have changed. Due large part toimmigration following the Hart-Cellar Act 1965,in 2012, for the first time, whites made minority births the United States.7 2012 was also the first year that white deaths outnumbered white births the U.S.8 Hunter was decided 1969, only four years after the 1965 Hart-Cellar Act. Seattle was decided 1982  more than thirty years ago, when the demographic change was just starting but not yet manifested itself the degree has today.9 Most Children Younger than are Minorities, Census Bureau Reports, Press Release, U.S. Census Bureau, May 17, 2012, available http://www.census.gov/newsroom/releases/archives/population/cb12-90.html.  Neil Shah, More White Americans Dying Than Being Born,Wall Street Journal, June 13, 2013, available http://online.wsj.com/article/SB10001424127887324049504578541712247829092.html. fact, was 1980 that the demographic changes related immigration became very substantial. See Shrestha and Heisler, supra The net immigration rate fluctuated thelow range 1.5 2.4 net migrants per 1,000 resident populations between 1950 and 1979. increasing trend has been noted since 1980, and the annual rates the 1990s were generally the range 3.0 3.9.). 
Furthermore, the periods both before and after passage the Civil Rights Act, this Court oversaw the broad cultural changes once largely segregated society, upholding the act and its enforcement court, and preventing backlash against from undermining its promise.10 The success the civil rights era has forever changed American culture and politics.11 
Today, the concept racial minorities andmajorities understood 1969 and 1982 longerexists. The political reality the electorate the days the Hunter and Seattle decisions gone. 2013 significant populations blacks, whites, Latinos, and Asians all must compete the ballot box.  Moreover, the smaller and shrinking white majori This Courts decisions influencing the success the civil rights movement began with Brown Board Education, 347 
U.S.
 483 (1954) and Shelley Kraemer, 334 U.S. (1948), which declared that courts could not enforce racially restrictive covenants. the civil rights movement progressed, the Courtcontinued promote non-discrimination and racial equality with host cases. See, e.g., Lucy Adams, 350 U.S. (1955), establishing that students could not refused admission public university the basis race; Boyton Virginia, 363 U.S. 454 (1960), which prevented racial segregation bus terminals; Heart Atlanta Motel United States, 379 U.S. 241 (1964), which upheld the Civil Rights Act; Whitus
 Georgia, 385 U.S. 545 (1967), preventing discriminatory jurypanels; and Loving Virginia, 388 U.S. (1967), declaring laws against interracial marriage unconstitutional.  Some view Barack Obamas election and reelection the culmination the civil rights movement.  See, e.g. Glenn Eskew, Barack Obama, John Lewis, and the Legacy the Civil Rights Struggle, American Studies Journal (2012), available http://www.asjournal.org/archive/56/208.html. 
ties 2013 have been successfully transformed bythe civil rights movement and longer favor racial exclusion and discrimination. The political restructuring doctrine should therefore laid restalongside Americas binary racial history. 
II.	 POLITICAL RESTRUCTURING DOCTRINE CANNOT APPLIED AFFIRMATIVE ACTION 
Even the political restructuring doctrine had not been rendered obsolete interveningchanges American society, could still not applied the Michigan ballot initiative this case.  Political restructuring doctrine relies heavily the idea protecting minorities from unjust ballot initiatives passed the majority. Hunter eloquently states: The majority needs protectionagainst discrimination and did, referendum might bothersome but more than that. 393 
U.S. 390. Hunters foundational premise, therefore, that long majority wants stop racialdiscrimination can with referendum.  Here, the Sixth Circuit has said that majority people may not pass referendum that prevents stateactors from using racial discrimination.  This turns Hunter its head. the lower courts dissent said, the equal protection clause cannot both prohibit racial discrimination and prohibit laws banning racial discrimination. Coalition, 701 F.3d 466, 494 (6th Cir. 2012). 
Furthermore, the political restructuring doctrine has only been applied cases where populations vote their racial group interests alone.  This assumption longer true for popular initiatives affirmative action, ever was.  The broad public dislike affirmative action spread evenly among Americas racial groups: 
The wide opposition affirmative
tion college admissions spans parti
san and racial divides. Nearly eight whites and African Americans and 
almost seven Hispanics oppose
lowing universities use race fac
tor.12 
Support for affirmative action now historic low.13 Accordingly, affirmative action politics today are not about racial rent-seeking, but about overwhelming majorities all Americans united rejecting poor public policy choice.  Absent vote based pure prejudice and animosity against aminority group, radically dangerous for federalcourts take away the peoples right govern themselves legislating the ballot box: Scott Clement, Wide majority opposes race-based college admissions programs, Post-ABC poll finds, Washington Post, June 11, 2013, available http://www.washingtonpost.com/politics/poll-majority-opposesrace-based-college-admissions-programs/2013/06/11/4aee6cf8d2b9-11e2-8cbe-1bcbee06f8f8_story.html. Id. June 2013 poll found [a]bout percent said the [affirmative action] programs are good idea, while the samenumber said they have gone too far and now discriminateagainst whites, marking the first time more than two decades that supporters did not outnumber opponents.) (italics added).     
Support for direct democracy draws 
the idea that popular self-rule 
important part what means for 
society free. Direct democracy also associated with the hope
pectation that voters will more
tive, informed, and responsible  cit
izens and people  when important 
decisions are their hands.14 
The reasons for affirmative actions decliningpopularity today should obvious all but the most partisan observers. the 1970s, the case could plausibly made that affirmative action wastemporarily desirable remedy immediate past discrimination against blacks.  Preferential policies any kind are far more justified when aimed helping people who have actually faced severe dis
crimination their own lifetimes. Even this Court has recognized the relevance proximity time topast injustices, holding that race-conscious admis Maimon Schwarzschild, Voter Initiatives and American Federalism: Putting Direct Democracy its Place, Maimon Schwarzschild, Public Law and Legal Theory Research Paper Series, University San Diego School Law, pp. 2-3 (Fall 2003). See President Lyndon Johnsons Commencement Address Howard University, To Fulfill These Rights, June 1965, (You not take person who, for years, has been hobbled chains and liberate him, bring him the starting line race and then say, you are free compete with all the others, and still justly believe that you have been completely fair.),   available http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650604.asp.  
sions will probably completely unconstitutional 15years from now.  Grutter Bollinger, 539 U.S. 306, 341-342 (2003). Whatever discrimination blacks and Latinos face today, any attempt compare the discrimination faced blacks the 1950s and1960s shameful trivialization history.   

CONCLUSION 
Political restructuring doctrine outdated affirmative action. Neither should allowed fall back the other means perpetuatingitself era neither was designed for.  The Sixth Circuit should reversed, and the decision the voters Michigan end affirmative action should stand. 
Respectfully submitted, 
Chris Fedeli 
Counsel Record
 Julie Axelrod JUDICIAL WATCH, INC. 425 Third Street S.W., Ste. 800 Washington, D.C. 20024
(202) 646-5172 cfedeli@judicialwatch.org 
Counsel for Amici Curiae 
July 2013



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