Sotomayor – A Major Mistake

If there is anyone who had any doubt that Sotomayor is an intellectual lightweight, an advantagee of affirmative action, and a partisan hack, the latest dissent she authored should leave them doubting no longer.

In a decision released Tuesday, in the case of Schuette v. BAMN, the Supreme Court held 6-2 that the people of Michigan could outlaw racial discrimination. Surely, one might think, the left wing of the court would consider that good news. But no. Justices Sotomayor and Ginsburg both said that racial discrimination was protected by the fourteenth amendment.

The issue at hand stems from a referendum, in which the people of Michigan voted upon and enacted an amendment to the state constitution. The referendum, now Article 1, section 6, reads as follows:

(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

What has Sotomayor so upset is that this provision effectively bars the state from using race as a factor in admissions to the state’s universities. Not explicitly addressed in the case is that it also bars race from being used as a factor in other state decisions, such as hiring and contracting.

Oh, the horror! After years of preaching about the evils of discrimination based on the color of one’s skin, Sotomayor decides that a little discrimination, provided it benefits minorities, is a good thing. She then spends 58 pages, more that the entire plurality opinions together, to engage in the most torturous attempt at logic to prove her point. She even goes so far as to suggest that the 58% of the people that voted for the proposal were racists in the same vein as those who enacted the Jim Crow laws.

Sotomayor said. “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.” In other words, the way to end discrimination is to enshrine it.

Sotomayor agrees that the governing boards of the State’s various universities could have implemented a policy making it illegal to “discriminate against, or grant preferential treatment to,” any individual on the basis of race. But she suggests that for the people of that state to reach that same decision is somehow defective.

From her opinion: “Prior to the enactment of the constitutional initiative at issue here, all of the admissions policies of Michigan’s public colleges and universities—including race-sensitive admissions policies—were in the hands of each institution’s governing board. The members of those boards are nominated by political parties and elected by the citizenry in statewide elections.” Sotomayor seems to be suggesting that representatives of the citizens can do things that are forbidden to the citizens themselves. Certainly an odd result, yes?

She goes on to say that in the face of “invidious” discrimination, minorities had made great inroads among these boards, convincing them to use not quotas, nor affirmative action, but “race-sensitive admissions policies.” But now, after this amendment, their only remedy is with the political process. No longer can LaRaza stage a sit-in and demand preferential treatment. No longer can the NAACP or the SLA demand minority set-asides. For that, they must convince the voters.

Sotomayor sees this as prima facie racism. She suggests that, for example, if I wish an increase in geology classes, I need only convince the governing board, and I can succeed. But if I wish a race-based affirmative action program, I must first convince 51% of my fellow Michiganders to agree with me. Sotomayor fails to distinguish between policies of state, and policies of a sub-state. To be clear, the general population may be incompetent to decide what is necessary for a decent college education, though I doubt it. But they are perfectly capable of legislating how their representatives behave towards them. Sotomayor does not grasp the difference is one of kind, and not merely degree.

Sotomayor argues in her dissent that the decision of the people of Michigan to end racial discrimination is itself an instance of racial discrimination. She argues that the fourteenth amendment, which in relevant part states: “No State shall…deny to any person within its jurisdiction the equal protection of the law,” really means the opposite of what it says.

Of course, she is in good company. Eric Holder, speaking at Columbia University in 2012 said, “The question is not when does [affirmative action] end, but when does it begin. . . When do people of color truly get the benefits to which they are entitled?”

Justice Sotomayor argues explicitly that Michigan’s voters would have been within their rights to lobby university authorities to adopt race-neutral admissions standards, but that by adopting a constitutional amendment insisting on race neutrality, thereby transferring the decision from the education bureaucrats to the people themselves and their constitution, they “changed the rules in the middle of the game.”

Justice Scalia, clearly frustrated by Sotomayor’s bizarre position that allowing voters to ban violations of the equal protections clause is itself a violation of the equal protections clause, pointed out in his concurrence that implicit assumptions about “disparate impact” — the notion that equal protection under the law violates equal protection under the law if minorities do worse relative to whites under a race-neutral standard — run counter both to the text of the Constitution and to the Court’s longstanding jurisprudence.

Sotomayor’s position on this matter doesn’t reflect a careful and nuanced reading of the Constitution or of Supreme Court precedents. Nor does it reflect a rigorously thought out logical argument. It expresses her pedigree as a political brawler, and an ideologue of the left. Her opinion is legally illiterate and logically indefensible. Which will make little difference to the race-baiters and division peddlers, or to their useful idiots. But it should make us take a serious look at who gets appointed to the court.