Affirmative Action Defended

Affirmative Action Finds Brave Defense in Sotomayor's Dissent

by Mary Sanchez

Good for Sonia Sotomayor.

She called out her U.S. Supreme Court peers for their dismissive attitudes toward our nation's troubling racial history and their wishful thinking on how far we have come in such matters.

"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," Sotomayor wrote in a withering 58-page dissenting opinion.

The case, Schuette v. Coalition to Defend Affirmative Action, decided the fate of a Michigan law that bans the consideration of race in state college admissions. The Supreme Court voted 6-2 to uphold the law.

Eight states have outlawed race as a consideration in admissions at state universities. The court's decision opens the door to voting majorities in other states to reach the same conclusion, without considering the historical burdens many minority people still struggle with -- a stark break from the court's past role as a guardian of fairness and justice for all.

Sotomayor, joined by Justice Ruth Bader Ginsburg, firmly chided the court's majority. Justice Anthony Kennedy wrote the court's opinion, which Chief Justice John Roberts and Justice Samuel Alito joined. Justice Antonin Scalia, with Justice Clarence Thomas concurring, also voted to uphold the Michigan law but offered a different opinion.

By writing her brave dissent, Sotomayor illustrated for America what she meant in a controversial remark she made during her Senate confirmation hearings. Remember that quote? The one where she said that a Latina jurist might "reach a better conclusion than a white male who hasn't lived that life."

That prediction has come true.

In this case, she showed herself to be a better guardian of a long legal legacy the high court set down in numerous prior decisions: protecting minorities from discriminatory laws enacted by electoral majorities. She accused her peers of abandoning that legacy. "We ordinarily understand our precedents to mean what they actually say, not what we later think they could or should have said," she scolded.

The court's ruling does not by any means decide the complicated issues of how race or race-neutral considerations like socio-economic status will be used in college admissions. What it does is change how those decisions can be made. Michigan's anti-affirmative action law was passed in 2006 by ballot initiative, with the support of 58 percent of Michigan voters.

In her dissent, Sotomayor pointed out what should be obvious: "Under our Constitution, majority rule is not without limit." Race still matters in America. The burdens of past racial discrimination -- in the case of African-Americans, hundreds of years of slavery, terrorization and apartheid -- are still palpable in unequal life conditions. And racial, ethnic and gender discrimination continues to abide.

Asserting merely that the majority should rule, even in cases where it stacks the deck against minorities, is not fair in America. It wasn't fair a century ago when literacy tests and poll taxes were put in place, and it's not fair in 2014.

Conservatives accused Sotomayor of penning an "emotional" dissent, the implication being that it lacked the rigor of cool reason. Another way to describe it might be passionate and humane, two words that also describe the thirst for justice that inheres in our species.

"Race matters to a young woman's sense of self when she states her hometown, and then is pressed, 'No, where are you really from?', regardless of how many generations her family has been in the country," she wrote.

That was not all there was to her dissent, however. There was a minute detailing of this country's long history of discriminatory law, of states and municipalities using the vote of the majority to limit the rights of the minority. It's a long and lamentable list. Grandfather clauses, good character requirements, poll taxes and gerrymandering provisions all were concocted to keep minorities in their place, and all were invalidated by the court.

The Supreme Court for more than a half-century has done the United States inestimable good by putting limits on discrimination. Somehow the conservative court majority has forgotten this, but Sotomayor has not.

As the nation's first Latina Supreme Court justice, she is in a unique position to speak to experiences that her colleagues can only read about -- and apparently are all too ready to dismiss.

She is also a rigorous jurist, and she won't let the court abandon its proud and righteous legacy without putting up a fight.

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"Affirmative Action Finds Brave Defense in Sotomayor's Dissent"