What about, let’s say, racial minorities? Weirdly enough, them not so much. Look at the language in Schuette v. Coalition to Defend Affirmative Action,in which a statewide majority voted to outlaw any use of race in admissions to Michigan’s public universities. A majority vote on racial matters, one would think, presents at least the possibility of oppression. And a court that fears majorities would be alert for foul play, correct?
In a word, no. Again writing for the majority, Kennedy struck a different tone. Schuette is a judicial canticle to the right of majorities to have things their own way. “Freedom does not stop with individual rights,” he wrote. (Chief Justice Roberts did not protest this language.) To void the initiative “would be an unprecedented restriction on … a fundamental right held not just by one person but by all in common.” Here indeed is a “collective right.” Not only that, it is “fundamental”—the strongest kind of constitutional right. The plaintiffs in Schuette were impudent even to question it: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
In two cases, then, the majority is wicked; in a third, it is virtuous. Is it a coincidence that the third case is one in which we can be pretty sure the majority was overwhelmingly white? Rich people and Christians are minorities, but minorities are not. The equal-protection clause has performed Sirsasana before our astonished eyes.
Much as we might wish it were not so, the conservative justices sometimes seem to live in the airless world of talk radio, Fox News, and the Murdoch press. Those media often warn that Christians and the rich face persecution. They also proclaim that, in the United States as it exists today, the old majority are strangers in a strange land. Bill O’Reilly expressed it baldly on election night 2012: “The demographics are changing. It’s not a traditional America anymore.”
We’re dealing here with unconscious attitudes, not deliberate bigotry. This conservative majority seems deeply anxious about what is happening to the country. At some level, they may feel that their role is to protect the realmajority, the old majority, the Schuette majority, against a new majority—a rabble with unfamiliar names, speaking unfamiliar tongues, and worshiping unfamiliar gods.