When I read Justice Sotomayor’s powerful Schuette dissent, I found myself thinking about Quidditch, that favorite game of constitutional scholars and other wizards.
As Justice Sotomayor recounted, Schuette arose from political disagreement in Michigan as to the appropriateness of race-based affirmative action in higher education. To simplify the back-story, several years ago Michigan universities had more or less decided that affirmative action was a good idea and began to implement it. At that point, opponents of affirmative action could have engaged in political action to change university policy, such as by lobbying board members. Instead, Michigan voters adopted a referendum that prohibited state universities from making admissions decisions based on race, including race-based affirmative action. To trump the referendum, proponents of affirmative action would have to engage in their own state-wide political movement. For that reason — and with ample support in case law — Justice Sotomayor viewed the referendum as a procedural faux pas. As the Justice put it: “Michigan voters changed the rules in the middle of the game.”
That’s what made me think about Quidditch. If you’ve stuck with me this long, you probably know how the magical game is played, but in case you don’t, here’s the basic idea. Wizards and witches fly around on broomsticks essentially playing soccer. Meanwhile, there is a highly maneuverable, fast-flying object (the “golden snitch”) also fluttering around. For reasons that only JK Rowling knows, if you catch the golden snitch, then your team typically wins — right then and there. Obviously, the existence of the golden snitch has nothing to do with creating an easy plot device for a certain owl-eyed protagonist to turnaround losing matches and thereby instantly become Quidditch MVP. But I digress. The point for now is this: there is nothing inherently objectionable about having two parallel sets of rules: one that is just incrementally scoring points toward an ultimate total, and the other that trumps all the normal points and thereby brings instant victory. Boxing, for instance, is similar: you can win slowly on points, or you can score a knockout.
To me, the Michigan referendum — whatever its merits or demerits generally — does not seem like a mid-game rule change. Rather, it seems to be a product of the fact that state politics is a multi-level game, like Quidditch. You can “win” slowly, one university or board representative at a time; or you can “win” all at once, through something like a referendum. Of course, when a boxer scores a knockout or Harry miraculously catches the golden snitch, folks on the losing side are obviously going to be disappointed and frustrated — and they may well demand a rematch. But they also lost, fair and square.
UPDATE: Over at the Volokh Conspiracy, Will Baude has given Re’s Judicata a very nice launch. Will’s post also elicited some comments that complicate the “basic” depiction of quidditch that I provided above. In particular, the commentators point out that while catching the “golden snitch” instantly ends the game and confers a large number of points on the catching team, the catching team can still lose if it chooses to catch the snitch at a moment when it is sufficiently far behind on points. In this respect, Quidditch is an imperfect illustration of the point I wanted to make, as compared with, for example, boxing. To reflect this point I have edited the post above to indicate that the catching team typically wins instantly at the time of the catch.