All you really need to know about Supreme Court Justice Sonia Sotomayor’s dissent in this week’s affirmative-action case is that Attorney General Eric Holder praised it as “courageous.”
There’s a strong presumption that whatever meets Holder’s approval will be insipid or politically stilted or both, and Sotomayor’s opinion doesn’t disappoint on either count.
In a 6-2 ruling, the Supreme Court upheld Michigan’s prohibition on racial discrimination in college admissions, adopted as an amendment to the state’s constitution by voter initiative in 2006. It is this anti-discrimination measure that Sotomayor endeavors, in a dissent joined by Ruth Bader Ginsburg, to deem discriminatory and unconstitutional.
She tackles this difficult and dubious task with gusto, even promoting a new euphemism: “race-sensitive admissions policies.” If Sotomayor’s phrase were applied more broadly, we would rewrite the history of Jim Crow to refer to “race-sensitive” water fountains and lunch counters.
Sotomayor builds her legal case on the “political process” doctrine developed beginning with the Warren Court in the 1960s. The doctrine can forbid voters from restructuring the political process in a way that harms the interests of minorities. Sotomayor leans on two flawed Supreme Court cases that unquestionably give her material to work with; the result is nonetheless a perverse hash of through-the-looking-glass legal reasoning.
According to Sotomayor, Michigan’s amendment changed “the rules in the middle of the game.” This is strange. As Antonin Scalia points out in his concurrence, amending the state constitution has long been part of the rules. Voters have done it 20 times since 1914.
Sotomayor further bizarrely maintains that the constitutional provision “draws a racial distinction.” By this logic, so does any law mandating equal treatment of people no matter what their race or ethnicity. For that matter, so does the 14th Amendment.
The emotional heart of her opinion comes near the end, where she repeats over and over the mantra “race matters.” She notes how a minority can be asked what country he is from, even if his family has been here for generations, and the hurtful effects of other similar “slights,” “snickers” and “silent judgments.”
This passage could be titled “Microaggression comes to the Supreme Court.” Needless to say, such inadvertent offenses can wound people. But what do any of them have to do with college admissions, or the Supreme Court’s jurisprudence?
Sotomayor could have added that “race matters” when you are an Asian-American student who gets rejected from your top school because it discriminates against Asian-Americans to achieve a racial balance considered appropriate by its “race-sensitive” administrators.
For Sotomayor, Asian-Americans are the invisible minority. They are highly inconvenient to her narrative. When California considered putting on the ballot a measure rolling back the state’s ban on affirmative action this year, it was a revolt of Asian-Americans that shelved it.
If she had wanted, she could have included them in her discussion of the history of discrimination in America. In the 19th century, Chinese couldn’t give testimony against whites and were excluded from San Francisco public schools. In the 20th century, California banned marriage between whites and “Mongolians.” Of course, Japanese-Americans were interned during World War II.
This history could extend all the way into the late 20th century and early 21st century, when colleges disadvantaged Asian-Americans to avoid having “too many” of them attend. Then, to add insult to injury, a Supreme Court justice who styles herself the champion of minorities didn’t bother even to mention them in a 58-page opinion about minorities and college admissions.
For Sotomayor, racial preferences are clearly an unalloyed good. She seems blissfully unaware of research showing that they aren’t even necessarily good for the minorities they allegedly benefit. At least she leaves no doubt about her animating vision. It is of a perpetually racialized society with different rules for different groups, blessed by a “race-sensitive” Supreme Court.
Rich Lowry can be reached via e-mail: firstname.lastname@example.org.