In the art of legal persuasion, how the issue is framed often determines how it is decided. And sometimes the issue itself is who decides or (as once presidentially put) who’s “the decider”.
The Supreme Court was the decider on April 22 when it held that the voters of the States may decide whether to prohibit affirmative action in state university admissions. Schuette v. Coalition to Defend Affirmative Action. Justice Kennedy framed the issue as who gets to decide: i.e. the issue wasn’t the constitutionality of race-conscious admissions policies, but whether the voters could decide to prohibit them or not. The Court’s plurality ruled that the voters are the deciders and that it would be “inconsistent with the underlying premises of a responsible, functioning democracy” not to let the voters of Michigan amend the State Constitution to prohibit affirmative action in admissions. In a passionate dissent, Justice Sotomayor said the deciders should be the governing boards of universities rather than the voters. “Race matters,” she wrote, and a university board can decide how much. Deciding on the decider in Schuette involves different perspectives on democracy: the Kennedy perspective focused on freedom of voters vs. the Sotomayor perspective focused on limiting majority rule where it “can oppress minority groups”.
Here’s a monumental depiction by Emanuel Leutze of a decider during a decisive moment on December 25, 1776. The original painting by Leutze was destroyed in World War II in a British air raid on Germany (ironically, Washington is crossing to attack German troops in a war against Britain). The second version painted by Leutze survives today at the Metropolitan Museum of Art.
