By an 8-7 vote, the U.S. Court of Appeals for the Sixth Circuit has held that Michigan’s Proposal 2, aka the Michigan Civil Rights Initiative, is unconstituional. The Court split along predictable ideological lines, with Democratic nominees siding with the plaintiffs, and Republican nominees voting to uphold the initiative. ...This is a good example of judicial supremacy in action. The court wiped out a vote of the people on the theory that it is too hard for the other side to amend the state constitution. This case will probably be heard by the US Supreme Court, and lets hope that it gets there before Pres. Obama packs the court with more judicial supremacists.
In other words, it is unconstitutional for a state constitution to prohibit the consideration of race by state actors.
See also Volokh's opinion.
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