Supreme Court Justice Sonia Sotomayor’s dissent in the affirmative action case yesterday didn’t get as much applause from Democratic politicians as one might have imagined. (The left-wing blogosphere rushed to her defense when the majority — really the plurality — took issue with her opinion.) After all, her stalwart defense of race-based government decision-making, to elevate minorities or for “diversity,” is part and parcel of the Democratic creed. When you look at what she is saying about Americans it is understandable.
She argues that not only can you have affirmative action but also it is unconstitutional for voters to decide not to use that method of addressing potential bias. She spotted the Michigan proposition as the end of a straight line running from Jim Crow right up to Michigan voters’ decision that race-based admissions are not the way to achieve diversity. (“At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities out of the political process altogether by withholding the right to vote. This Court intervened to preserve that right. The majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too. The majority persisted. This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration.”)
Scotusblog sums up the 50-plus page dissent:
She accused her colleagues of reaching a decision that “fundamentally misunderstands the nature of the injustice” created by the Michigan amendment. She emphasized that, although the Michigan amendment had strong support among voters, it is a bedrock principle of constitutional law that there are limits on what the majority of voters can do. They can’t, she argued, “change the ground rules of the political process in a manner that makes it more difficult for racial minorities alone to achieve their goals.”
But, she continued, the Michigan amendment does exactly that, by making it much harder to advocate for and implement admissions policies that consider race. The only way to eliminate Michigan’s challenged ban on affirmative action is to amend the state constitution again, which can be a tedious and expensive process. But if you wanted to make other changes to a university’s admissions programs — for example, to make it easier for children of alumni to gain admission — you can just go to the board of trustees.
Sotomayor also outlined her views on race more generally, which (it will not be surprising) bear little resemblance to those expressed by her colleagues in the majority. She explained why “race matters”: because of the “long history of racial minorities being denied access to the political process”; because of the “persistent racial inequality” that remains today; and — in a paragraph that appears deeply personal — because “of the slights, the snickers, the silent judgments that reinforce the most crippling of thoughts: ‘I do not belong here.’” In a not-so-subtle jab at the Chief Justice’s 2007 statement that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” she wrote that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” (As Mark Walsh reported yesterday for this blog, the Chief Justice’s only reaction to this dig came in his written concurring opinion, in which he observed that, although “people can disagree in good faith on this issue . . . it . . . does more harm than good to question the openness and candor of those on either side of the debate.”)
It is noteworthy that reliable liberal Justice Stephen Breyer did not join in such sentiments. Sotomayor’s dissent is of a piece with the dissent and left-wing outrage over the decision last term on the Voting Rights Act finding no factual basis for continued federal usurpation (and pre-clearance of election changes) in select states. If the country has moved on and recognized tremendous progress on race (especially in an era with an African American president, attorney general and national security adviser) plainly Sotomayor and her defenders have not.
Prominent African American Republican Artur Davis, formerly a Democratic congressman, observes that Sotomayor “is really suggesting that affirmative action is a constitutional obligation, in effect, that racial minorities have a right to have the government tip the balance in their scales. That is a radical departure from equal protection doctrine, which has dealt almost exclusively with the question of whether race preferences violate the rights of students who don’t receive them.” Moreover, Davis says, “Second, the dissent implies that a state that Barack Obama carried twice, and that has none of the history of racially polarized voting that marks the Deep South, can’t be trusted to evaluate affirmative action policies.”
The good news here is that only one justice agreed with her, and most of the country does not.