Grassroots Commentary

The Unwise Latina

Bill Franklin · May 5, 2014

In 2006 the voters of Michigan approved by a margin of 58% to 42% a state constitutional amendment outlawing race-based preferences. Alleging that in passing an equal protection amendment, Michigan voters had violated the equal protection rights of minorities (I’m not making this up) an affirmative action group sued Michigan voters.

Two years ago the 6th Circuit Court of Appeals agreed 8-7 that Michigan voters violated the Equal Protection Clause of the 14th Amendment by mandating equal protection and struck down the amendment. Michigan’s Attorney General took the appeal to the Supreme Court, which two weeks ago ruled 6-2 in his favor to let the amendment stand.

Not without fireworks, however.

Today – almost 60 years to the day since Brown v. Board of Education was decided, and only two months short of the 50th anniversary of the 1964 Civil Rights Act – there exist people who believe that the vestiges of institutionalized discrimination from two generations ago (before Brown and CRA) still remain, justifying continuing state-sponsored discrimination for racial minorities. Unfortunately some of those people wear black robes and sit on court benches. Sonia Sotomayor is one of them.

The Supreme Court’s Michigan ruling two weeks ago was not sweeping, though many (including me) thought it should have been. It did not strike down the discriminatory practices of universities using affirmative action in the 42 states that don’t ban it, for example. It said Michigan could amend its constitution outlawing race-based preferences via ballot initiative. The opponents of the Supreme Court Michigan case, including Sotomayor, clearly had no problem with discrimination – as long as it favored minorities. When it didn’t favor minorities, they had a problem.

The metronomic swing voting Anthony Kennedy joined Alito and Roberts while Scalia joined Thomas to make the majority. But surprisingly the reliably liberal Stephen Breyer also joined the majority. Thus three different majority opinions were written explaining why the Right was, well, right, leaving Sotomayor and Ginsberg alone on the Left, for whom Sotomayor wrote a withering 58-page dissent. Kagan recused.

While dissenting opinions are normally short philosophical statements of “this is why I voted as I did” and sometimes include “this is why I think the majority is wrong, ” Sotomayor’s dissenting opinion was a tirade – longer than the total of the majority opinions in this decision. Moreover, she read the entire dissent from the bench – an unusual but not rare practice – to demonstrate how wrong she thought her six “colleagues” were, especially Chief Justice Roberts, who she called out, albeit not by name, for special ridicule.

The core of her vituperation slapped Roberts for being “out of touch with reality,” Stephens for being willing to “sit back and wish away” discrimination, and Scalia for believing that race-sensitive admissions policies “do more harm than good” and his assertion that Michigan residents favored a colorblind constitution and “it would be shameful for us to stand in their way.”

Thus, Sotomayor opened fire on race neutralism:

My colleagues are of the view that we should leave race out of the picture entirely and let the voters sort it out. We have seen this reasoning before.

Hinting that the majority’s decision supporting Michigan voters will return the Nation to Jim Crow racism, Sotomayor argued that the voters’ choice to end racial discrimination was an act of racial discrimination and that the only sure way to end such racial discrimination is by mandatory (court-ordered) maintenance of racial discrimination. She didn’t use those words, but the intent was clearly there in the last paragraph on page two of her dissent, which is available at the hyperlink above.

Sotomayor mocked Roberts’ oft-quoted dictum that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” which he wrote in the Seattle School District case. She called his thinking “out of touch with reality.”

[Quoting Roberts] “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It is a sentiment out of touch with reality… 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.

Race matters, she asserted, with a jab to Kennedy who believed the issue to be decided is “whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences.” She calls his lack of judicial activism “sitting back and wishing away, rather than confronting” racism.

As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

Roberts felt compelled to defend himself against her scurrilous attack in a rebuttal opinion.

… It is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect … that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.

But “good faith” disagreement is not something Sotomayor comprehends. She could take a lesson from the first minority on the Supreme Court, Thurgood Marshall. He was often frustrated by the Court’s opinions related to race, but he never personalized it as she did.

For example, in a case involving bankruptcy, the bankrupt applicant was unable to pay the $50 bankruptcy filing fee, which, his lawyer argued, was denial of due process and equal protection. The lower court agreed but the Supreme Court didn’t. The opinion of the majority argued that he was offered installment payments for the fee that were no more than “the price of a movie or a little more than the price of a pack of cigarettes.” Marshall took offense. He began to write his dissent stridently – “It may be easy for judges with life tenure and a salary guarantee to think that …” but then rewrote a moderate introduction, “It may be easy for some people to think that weekly savings of less than $2 are no burden.” He went on to argue that it’s perfectly fine to differ over opinions about what Constitution requires, but it was “disgraceful” to interpret the Constitution with opinions about what poor people are able to do unless one has been poor.

Sotomayor is incapable of that kind of professional politesse – or reasoning.

Scalia also felt Sotomayor should be reprimanded. “As Justice Harlan observed over a century ago, ‘[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,’” Scalia recalled in the Harlan’s dissent written for Plessy v. Ferguson. “The people of Michigan wish the same for their governing charter,” Scalia concluded.

Citing Sotomayor’s dissent introduction, Scalia scolded her assertions, saying that it is “… doubly shameful to equate ‘the majority’ behind [the Michigan constitutional amendment] with ‘the majority’ [on the Court at that time] responsible for Jim Crow.”

Scalia, who doesn’t suffer fools gladly, pointed out in rebutting Sotomayor’s dissent that discrimination is discrimination regardless of its noble motives. If a clearly race-neutral standard happens work for whites and against minorities as an unintended consequence, neither the law nor the court may step in and jigger the standard to eliminate its unwitting “disparate impact.”

Scalia was too charitable to remind the second most junior justice on the Court that the question the Michigan case was narrow: to decide if and how voters in the States may choose to prohibit the consideration of such racial preferences in college admissions – no more, no less. The last time I checked, college admission is not a constitutionally-protected right.

Sotomayor said during her confirmation hearings that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” Instead she showed in the Michigan decision what an unwise Latina she really is. She did not judge the case; she argued it. Her abominable racism is no different than the racism she railed against in her dissent.

Sotomayor was never suited to sit on the highest court in the land. There were better qualified, more thoughtful candidates from which to choose. But now that she is there, at age 59, she will have many years and ample opportunities to undermine the constitutional order of this country.

Sonia Sotomayor and Elena Kagan are living proof that presidential elections undeniably have consequences.

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