Stuart, first, just explain what exactly did the court do today?

STUART TAYLOR, National Journal: Strictly speaking, all they did was nine simple words; the petition for a writ of certiorari is denied. What that means is we’re not going to hear this case. They issued it without comment and without dissent. They didn’t say why they weren’t going to hear it. Typically, they do that hundreds–thousands of times each year, and it’s usually not–it’s never a precedent, a national precedent when they do it, and it’s usually not much of a news event. This time, I think, because of the vast importance of this case it is a substantial news event.

MARGARET WARNER: All right. Explain what you mean when you say it isn’t a precedent?

STUART TAYLOR: That means that in lower courts that lower courts around the country are not bound by what the court did today. The U.S. Court of Appeals from the 9th Circuit upheld the constitutionality of Proposition 209, and in the western states that are within its jurisdiction that is now law. But let’s say if Florida–which has thought about adopting a similar measure–does so–and there’s a challenge there, the federal courts in that part of the country will not be banned by what the Supreme Court did today. They will at least theoretically have the option of saying, well, we think it’s unconstitutional. In that sense the argument is not resolved for all time.

MARGARET WARNER: And what is the significance of the court not making any comment whatsoever? They could have made some written comment.

STUART TAYLOR: They rarely make any comment when they refuse to hear a case, and so that would be exceptional. I think what it shows in a practical sense, if we can get away from the technicalities of the law for the moment, is that there were not a majority of the current court that was troubled by what California had done in a legal sense? It seems that a majority of this court was not ready to say that’s unconstitutional and was prepared to defer to the voters of California when they said for the first time–the voters of any state have ever said–no more state affirmative action racial or gender preferences, which is what Proposition 209 said.

MARGARET WARNER: And what did this court of appeals say in upholding that? What was the basis on which the court of appeals in April said this is constitutional?

STUART TAYLOR: In essence, the court of appeals said, here we have a law that says it’s illegal for the state to discriminate against or grant preferential treatment to people in state programs on the basis of race or gender. And it is challenged under the 14th Amendment, Equal Protection clause, which basically says you’re not supposed to discriminate on the grounds of race or gender, among other things, with some exceptions. The court made it clear they thought the argument was a little bit absurd for why a law that says you can never discriminate on grounds of race–in California–would violate a state constitutional provision–a federal constitutional provision that’s been construed to mean you can almost never discriminate on grounds of race and gender. And they used strong language to demonstrate that they thought that the argument–and these are their words–teeters on the brink of incoherence. So the 9th Circuit basically said, of course, it’s constitutional. Why would anybody think it wasn’t?

MARGARET WARNER: So now what is–back to the practical effect–what’s the practical effect of this, first of all, in California?

STUART TAYLOR: The practical effect–nothing dramatic will happen tomorrow because the law had–the Proposition 209 had already been allowed to go into effect this summer when a stay was allowed to expire. And there are lots of technical battles to be fought as to whether the city of San Francisco, for example, which hates this proposition, its government, and wants to continue granting preferences to minority contractors, will have to stop doing so. There will be lots of foot-dragging. There will be lots of arguments, some rather technical, some rather substantial, about how far this reaches and what its actual impact is. In the long run it means that racial preferences of the kind that have been testified in the name of affirmative action for many years and gender preferences are illegal in California.

MARGARET WARNER: And does it also mean they’re illegal in the other states covered by this ninth circuit?

STUART TAYLOR: No, it does not. And I should amend what I just said a moment ago. I spoke a little too broadly. Racial preferences by the state are now illegal in California.

MARGARET WARNER: And when you say by the state, do you also include county and city governments, or just state?

STUART TAYLOR: Yes. County and city governments but a private employer, for example, is just as free tomorrow as they were yesterday, or before 209, to hire on a preferential basis if they want to, if they think, gee, we ought to have more people of color here, and we think that we’ve had a past discrimination, we ought to remedy it. They can do that. The state and the local governments no longer can do that. It only affects California unless or until other states’ electorates adopt similar measures.

MARGARET WARNER: All right. Now, does this preclude a legal challenge by say an individual who has a very specific case? You know, we’ve got to work for the fire department or didn’t get a job with the fire department and wants to sue the state on this basis. I mean, does it preclude all of that, or could an individual still bring an action?

STUART TAYLOR: It does not. It certainly has nothing to do with whether an individual can sue or say I’ve been the victim of discrimination and, therefore, I want a job. They can still do that. What it does do is it says that unless federal law says you’re entitled to a racial preference as a remedy, then that’s not a remedy available to the state courts. In theory, if a federal court says we think the only way to remedy some pervasive pattern of discrimination at the XYZ Police Department, for example, is to have a racial quota for hiring, which the court did once in its history in a case in Alabama, that would override the state law.

MARGARET WARNER: You mean they could do that, or they could not do that?

STUART TAYLOR: Federal law overrides state law and, therefore, if a federal court finds that federal law requires a racial preference, than that would override 209; however, the Supreme Court is not likely to find that that happens very often.

MARGARET WARNER: All right. Stuart, thanks very much.

STUART TAYLOR: Thank you.

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