…not of the Supreme Court. I writing now about the Court’s ruling in the Michigan affirmative action case (Schuette v BAMN) concerning the state’s “decision to end affirmative action at its public universities.”
The Court ruled 6-2 to uphold Michigan’s decision, holding essentially, that such a choice should be left to the States’ citizenry and not determined by the court system.
Justice Anthony Kennedy, writing for the Court (mostly—there were a number of separate concurring opinions), expanded on that:
The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this nation seeks to put behind it.
Justice Elena Kagan recused, Justice Sonia Sotomayor dissented, and Justice Ruth Bader Ginsberg joined the dissent.
Sadly, Sotomayor’s dissent was fundamentally racist.[1] She insisted that “race matters.” And
The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.
Indeed. But the Constitution, which must be applied “with eyes open to the unfortunate effects of centuries of racial discrimination,” must be applied as it is written—especially because, in the present context, the Constitution is color—and gender, come to that—blind, and explicitly so under the 14th Amendment. That means that there cannot be anything other than equal treatment under law; in particular, there cannot be special treatment for some groups, and there cannot be special treatment for some groups at the expense of other groups.
Applying special treatment, as Sotomayor demands because of those centuries of racial discrimination, is only to maintain that racial discrimination for centuries more.
She attempted to offer alternatives to citizens speaking their voice:
In the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive admissions policies. Those voters were of course free to pursue this end in any number of ways. For example, they could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through general public awareness campaigns. Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies.
This, of course, is just what the voters of Michigan did—only they did it state-wide, rather than piecemeal. There is no difference between the two, except in the mind of Sotomayor.
She buried this in a footnote:
Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.”
Which is nothing but the racism of preferential treatment based on race. Made blatant by her preferred term of reference.
Sotomayor concluded her dissent with this:
For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.
Because, of course, we cannot demarginalize those groups by treating them like adults and equals, we can only demarginalize them by perpetuating their status as…dependents…through continuing to single them out for special treatment.
I respectfully dissent from Sotomayor’s dissent.
[1] I of course do not mean to suggest that Justice Sotomayor wrote with anything like invidious intent. But the dissent at issue in this case seeks to change the rules of the political process and of the 14th Amendment to the disadvantage of members of our society disfavored by government.
Update: Added Justice Sonia Sotomayor’s first name to the first time she’s mentioned in the post. It’s my usual habit; I missed it this time.
