Antonin Scalia on yesterday’s Supreme Court decision
. . . Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination of the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) . . . It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.
Even taking this court’s sorry line of race-based admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits? Reacting to those race-based-admissions decisions, some States . . . have gotten out of the racial-preferences business altogether. And with our express encouragement [in Grutter]: “Universities in California, Florida, and Washington state, where racial preferences in admissions are prohibited by state law, are currently engaging in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.”
Well reasoned. Compare that to impassioned and angry from Sotoyamor:
“This refusal to accept the stark reality that race matters is regrettable,” Sotomayor wrote. “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.”
She added: “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.”
Roberts responded with a short, sharp statement of his own.
“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,” Roberts wrote.
“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.”
Sotomayor, 59, has spoken extensively about how affirmative action was key to her rise from a public housing project where her parents spoke only Spanish. The search for minorities to diversify student bodies in the 1970s won her invitations and scholarship offers from Ivy League schools she had only just learned existed.
She excelled at Princeton, winning the top undergraduate prize, and went to Yale Law School. But she has drawn diametrically different lessons about the experience than Justice Clarence Thomas, the court’s only African American, who said affirmative action cheapened his Yale Law degree.
Thomas did not write separately in Schuette v. Coalition to Defend Affirmative Action. But Sotomayor, joined in the dissent by Justice Ruth Bader Ginsburg, devoted pages to the country’s “long and lamentable record of stymieing the right of racial minorities to participate in the political process.”
And she said her colleagues ignored “the importance of diversity in institutions of higher education” and the decision “reveals how little my colleagues understand about the reality of race in America.”
Sotomayor filled her dissent with a detailed history of the court’s decisions regarding political empowerment and efforts by majorities to dilute the strength of minorities. She reprinted pages of graphics showing the decline of minorities at top universities in California and Michigan since the states prohibited the use of racial considerations.
She even wrote that she was not going to use the term “affirmative action” because of its connotation of “intentional preferential treatment” such as quotas, because the court has outlawed such practices. Instead, she called it a system of “race-sensitive admissions policies.”
How clever. But admissions to elite colleges are finite. Doling them out by race means that someone who is the “wrong” race–white, Asian–loses out, not on merit but on politics.
Jim Geraghty sums up what many people think:
I actually think there once was a strong and compelling argument for affirmative action for the descendants of slaves, and may still be. A key part of Americans’ ability to thrive since our founding is people’s ability to build upon the financial, intellectual, and cultural capital that they inherit from their parents. Even if your ancestors came here with nothing, they had a decent opportunity to hand something down to their children — be it land, money, heirlooms, or even just good values. Generation by generation, families built their wealth, or homesteads, or at least a bit of financial security. But for the ninety years or so after the Declaration of Independence, blacks couldn’t inherit anything. They couldn’t own much of anything. Their families could get split up and sold.
Once blacks were recognized as citizens under the law, they were still starting from effectively nothing. Because of their uniquely disadvantaged status for most of the first century of the United States — not mere garden variety discrimination, but a near-absolute legal restriction on accumulating anything to leave to their children — you can make a compelling argument that they need(ed) some sort of leg up, some sort of extra help.
The question is… when is that leg up no longer needed? We have an African-American president. An African-American Attorney General. We’ve had two African-American Secretaries of State. Starting in the 1990s, just about every kid wanted to grow up to be like Mike, millions of women of every hue thought of Oprah as a personal friend, and in the sport of the ultimate symbol of the established white privilege class, the country club, everybody wanted to be like multiethnic Tiger Woods, or at least the pre-scandal edition. Millions of white Americans sought to emulate African-American role models. Are there any ceilings left to be shattered, any barriers left to be broken? I’m sure this will be dismissed as the perspective of just another white guy, but how many barriers to success for African-Americans are still based upon racism, as opposed to other factors?
Notice where Sotomayor sees racism in today’s America:
“Race matters,” she wrote, to minority teenager who sees “others tense up as he passes;” to the young person addressed in a foreign language although she grew up in this country; to the young woman who is asked “No, where are you really from?”
“Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here,'” Sotomayor wrote.
Ah, she’s referring to “microaggressions,” what Dr. Derald Sue, a professor of psychology at Columbia University, characterized as an “everyday slight, putdown, indignity, or invalidation unintentionally directed toward a marginalized group.”
Do we want the Supreme Court litigating “everyday slights and indignities,” particularly if they’re unintentional? Look, an unfortunate fact of life is that the world has jerks and clods and those who will insult you, intentionally and unintentionally. (Does the First Amendment protect the freedom to speak everyday slights, putdowns, or invalidations unintentionally directed toward a marginalized group?) Doesn’t the fact that we’re talking about “microaggressions” suggest that we’re dealing with a comparably “micro” problem, requiring a shrinking of the government’s tool to address this problem?
And as a gentle reminder of perspective… we live in a world where ethnic cleansing, religious targeting, and targeted massacres are still going on in South Sudan, Syria, and other corners of the world. In the big picture, how big a problem is it if a person gets addressed in the wrong language?