In cases like affirmative action bans, where citizens (including minority citizens) vigorously disagree about whether the policy in question are likely to harm minorities or help them, the conservatives held, the court should practice judicial restraint and defer to democratic decision making. Breyer didn’t need to hold his nose to support this. Far from it. He enthusiastically defended the importance of letting democratically accountable bodies decide whether affirmative action should be adopted or rejected. …
Liberal defenders of affirmative action should embrace Breyer’s reasoning, rather than reluctantly tolerating it. The framework provides a principled reason for criticizing conservatives when they resort to judicial activism to strike down state policies that permit affirmative action. As Breyer wrote: the Constitution “favors decisionmaking though the democratic process. Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.”
Richard Kahlenberg thinks race-based affirmative action is on its way out, which he says is a good thing:
In 2012, my colleague Halley Potter and I examined a number of states that had outlawed considering race in admissions, often by voter referendum. In addition to Michigan, these states include Arizona, California, Florida, Nebraska, Washington and others. Six states, we found, have spent money to create new partnerships with disadvantaged schools to improve the pipeline of low-income and minority students.