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Sotomayor and Equality

[ 127 ] April 23, 2014 |

Yesterday’s affirmative action case is a close question, but Sotomayor’s dissent is perhaps her strongest work yet.

In addition, as Liptak notes, Sotomayor also had an excellent response to Roberts’s smarmy, ahistorical Parents Involved tautology:

We have seen this reasoning before. See Parents Involved, 551 U. S., at 748 (“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, one not required by our Constitution, and one that has properly been rejected as “not sufficient” to resolve cases of this nature.

Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process. And although we have made great strides, “voting discrimination still exists; no one doubts that.”

Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. See Gratz, 539 U. S., at 298–300 (Ginsburg, J., dissenting) (cataloging the many ways in which “the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools,” in areas like employment, poverty, access to health care, housing, consumer transactions, and education); Adarand, 515 U. S., at 273 (Ginsburg, J., dissenting) (recognizing that the “lingering effects” of discrimination, “reflective of a system of racial caste only recently ended, are evident in our workplaces, markets, and neighborhoods”).

And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. 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. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. 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. 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. [Some cites omitted]

Serwer has more.

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  1. DAS says:

    Sotomayor does bring a much needed reality check to SCOTUS, whose justices are otherwise quite out of touch. And many people don’t like that reality check, hence the stink raised about Sotomayor’s “wise Latina” remarks.

    I wonder if in the Aero case, Sotomayor will bring up the point that many of us in apartments in the big city don’t get very good TV reception (the apartment might not maintain the common antenna well and if you are facing away from the broadcast tower, rabbit ears in your apartment might not work). Cable/fiber optics are not so expensive anymore, but neither are they cheap: my family doesn’t use it, but I can see how Aero fills a niche for those who have DSL and cannot get signals via a TV antenna. Personally, I don’t understand why the big broadcasters don’t provide such a service themselves.

    I hope that Sotomayor will be able to bring this up as the justices deliberate on their decision in the Aero case.

  2. joe from Lowell says:

    Yesterday’s affirmative action case is a close question, but Sotomayor’s dissent is perhaps her strongest work yet.

    Exactly.

    Is there something about affirmative action that makes constitutional amendments regard it uniquely troublesome for the Equal Protection clause?? I dunno. That’s a legal question way above my pay grade.

    But Roberts’ aggressive ignorance about racism is indefensible.

    • Dustin says:

      It’s surely a knowing ignorance, too. The worst thing about his tautology is that, because the implementers of discrimination have certainly taken race into account, we’re then left with no legal weapons to fight back against them. We can try the democratic process to secure equality, but the court just shoots those laws down.

      I think it was Jeff Toobin who said that the simplest explanation of the Roberts Court is that will ALWAYS defer to the existing power structure, whatever it is. But the court seems just as eager to actually run interference for power as well.

      God save us from this dishonorable court.

      • joe from Lowell says:

        It’s surely a knowing ignorance, too.

        I don’t know, Dustin. Conservatives are very good at believing stuff on the grounds that it’s useful for them to believe it. And it’s not as if John Roberts goes to house parties in Anacostia where he hears war stories from actual black people.

        That “best way” line seems to have the same upper-class twit cluelessness as “Let them eat cake.”

        • sharculese says:

          It’s definitely less than willful.

          One of the worst moments of my time in law school was when I expressed disgust at Roberts’s “the way to stop discrimination” quip and the instructor looked at me puzzled.

          This was in a seminar on LGBT law.

          • Aimai says:

            I wonder if people here that old joke “If you are against abortion–don’t have one” or “if you are against gay marriage–don’t get gay married” the same way? Like: to them its obvious that simply refraining from doing wrong on an individual basis (if it is wrong) can’t touch the overall structural wrongness of lots of people doing wrong. But somehow on race issues even noticing it is causing some kind of heisenberg uncertainity principle of racist action so that talking about race becomes itself racism, fighting against racism becomes a kind of super racism.

            • So-in-so says:

              When you lose the war that allows you to be openly racist with impunity (even approval in some cases), you re-frame the fight as best you can and shout “just shut up!” at anyone who points out your racism. When that stops working, you revert to the four year old’s approach and shout “No I’m not, but you are!”.

            • rea says:

              The point to the lines about abortion and gay marriage is that it does not really effect you if I have an abortion/get gay married. Racism doesn’t work that way. “If you don’t want to use dogs and firehoses on school children of the wrong race, don’t use dogs and firehoses on school children of the wrong race–but leave me free to do so; it’s a matter of personal choice” is somewhat less than persuasive.

              • toberdog says:

                Yes, but at some level that is the point of the recent attempts to pass laws saying people can discriminate on the basis of religion. Those laws are saying that one-on-one discrimination should be legal.

            • Dustin says:

              “heisenberg uncertainity principle of racist action”

              Another brilliant, perfect coinage from one of my favorite commenters.

      • Joe says:

        If the “existing power structure” chooses a path against its value choices, the Roberts Court will repeatedly not go along with them. The PTB in various ways support AA (the military, big business and others) but the Roberts Courts opposes it.

      • Sly says:

        It’s surely a knowing ignorance, too.

        Everything about American culture tells white men that its easy to be objective about any given situation, since objectivity in the American context is, more often then not, the lens of subjectivity through which white men see the world.

        It’s a trap that even otherwise smart and pretty self-aware people can fall into. Reading Sotomayor’s dissent, I could feel the ground tremors from the collective eye-rolling of conservatives; thinking to themselves that she’s being too “emotional” about the issue due to her own experiences with Affirmative Action, and if she really was a “Wise Latina” she’d think the same way as Roberts, but she can’t because there’s just something about him that prohibits any kind of experiential bias on his part.

        • Aaron B. says:

          The misuses of the words “objectivity” and “rationality” by privileged white men are one of my biggest pet peeves. I’ll go big up for metaphysical and epistemic realism but I’ve actually studied philosophy and don’t use “objective” to refer to “whatever I read most recently on /r/theredpill”.

        • DAS says:

          objectivity in the American context is, more often then not, the lens of subjectivity through which white men see the world.

          I gotta use this quote in class someday. I teach sciency subjects, so I am not sure exactly when I’d have occasion to use it. Maybe when I am talking about the scientific method and how (even) science isn’t really objective but rather what is typically referred to as “objective data” is really data subjectable to “intersubjective verifiability” …

        • Col Bat Guano says:

          thinking to themselves that she’s being too “emotional” about the issue due to her own experiences with Affirmative Action, and if she really was a “Wise Latina” she’d think the same way as Roberts, but she can’t because there’s just something about him that prohibits any kind of experiential bias on his part.

          This reaction by various conservatives this morning drove me nuts. The “she’s just thinking with her ethnic lady parts” reaction tells a lot about conservatives today.

    • timb116 says:

      That’s Passive-Aggression, Joe. Roberts knows exactly what he’s doing and exactly the effect of his passive role in righting the wrongs of the past is. He is reaping –aggressively — the fruits of his labor is trying to roll back the Great Society

      • Aimai says:

        Yeah–I don’t think that Roberts doesn’t know exactly what he’s doing and what harm it does. He is bullshitting, not lying and not being sincere either. Its more of a magician’s trick and a form of sleight of hand than a real argument.

    • efgoldman says:

      “Aggressive ignorance>”
      Great turn of phrase, jfl, and absolutely true.

  3. howard says:

    i have asked myself how sotomayor can stand sitting in the same room with some of her colleagues.

  4. sharculese says:

    I see a problem with Sotomayor’s dissent.

    This refusal to accept the stark reality that race matters is regrettable.

    Yeah, right there. She misspelled contemptible.

  5. Joe says:

    Michael Dorf at his blog suggests the “political process” argument has its problems. Maybe. Not so sure. But, her speaking truth to power here still great.

    And, Kennedy’s paean to letting localities decide the question would have been easier to take if they let them do it in Parents Involved. There, Kennedy specifically voted separately since he said race conscious decisions can be legitimate. Fine — you should be able to find some case where you can join with Sotomayor’s side to make that clear. Or is democracy here a one-way ratchet?

  6. Patricia Kayden says:

    While I love Judge Sotomayor, I wonder how much affirmative action is really being used anyways. I doubt that it is being used to assist a significant number of African Americans (as was the intention of its architects). Perhaps it is now time to focus on class-based affirmative action, which could still be very effective in reaching lower income African Americans.

    • sharculese says:

      The relative merit of class- v. race-based affirmative action wasn’t before her though, and given what was before the Court, I feel confident saying its antipathy to race-based affirmative action (not that it would be okay with class-based affirmative action, either) is totally bananamas.

    • Sly says:

      More likely, class-based affirmative action would be used to disproportionately assist poor whites who need it less.

      • Aimai says:

        Isn’t this in effect what Texas did by offering placement at UT to the (?) top 5 percent of the graduating public school seniors? How’d that work out?

      • DAS says:

        I am not so sure about that. Also, sometimes class based affirmative action is even appropriate when racial prejudice is at the root of the discrepancies involved. For example, my mom is white, but she grew up in a largely Hispanic neighborhood with poor schools. A lot of the reason why the schools in her neighborhood were so underperforming was due to racism. And, even though my mom is white, she still suffered from the lack of education she received in schools that underperformed due to a lack of resources (and in some cases outright graft in terms of purchases of substandard textbooks, etc) which lack certainly reflected racially motivated neglect.

      • disadvantage index says:

        There are class based schemes that would result in an admitted class with racial demographics similar to one under an affirmative action scheme. However, the SES of both the URM and white student populations would be lower.
        Such schemes also require much more than looking at the students’ FAFSA forms.

        UColorado created a sophisticated scheme and it appears to have lead to an increase in the URM admit rate and a 20 point increase in admit rates for those dubbed “severely low SES.”

    • L2P says:

      When California stopped using affirmative action, black male enrollment at UCLA and UC Berkeley dropped to “What sport do you play?” levels. It’s ridiculously low.

      It’s hard to deny that affirmative action helped in ways that class-based standards do not. It sucks to be poor; I grew up poor. But growing up poor and black is a whole different story.

      • David Hunt says:

        Yeah. I recall an old Chris Rock routine where he told the audience, “Not of you white people would trade places with me — and I’m rich!” It was both funnier and sadder because that’s exactly what I was thinking right before he hit the audience with the punchline.

      • sure says:

        At the moment, poor black students are not the primary beneficiaries of affirmative action. 86% of African American students at selective colleges are from middle or upper middle class homes. (The white student body is marginally wealthier.) Classed based affirmative action would likely lead to an increase in the numbers of poor black students.

    • Joe says:

      What does “significant number” mean? She provides a bit of data in her dissent. And, it isn’t either/or. Finally, dealing with racism specifically is a concern here, not class alone.

    • Ed says:

      It’s a good question. Ward Connerly was quoted in the times as saying in effect that this decision was nice but not really a big deal, the war has been won.

  7. Anonymous says:

    Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. 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. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

    None of that is legal reasoning. She has no business doing this. And, I might add, 6 others on the court think she’s full of crap.

    • sharculese says:

      So I take it you’ve never read a SCOTUS opinion before, and that you don’t know what citations omitted means.

      Can I take this as admission that you don’t know what you’re talking about?

    • Sly says:

      “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.”

      Of course, selective citation is par for the course for racist dipshits. Like the speech given by King at the March on Washington, in which he spent 15 minutes saying one sentence over and over again.

    • Greg B says:

      She is responding to Roberts’ absurd argument that ignoring race is the best way to end racial discrimination. His argument certainly is not “legal reasoning.” Anonymous, you should be objecting to the conservatives on the Court, not Sotamayor.

    • DrDick says:

      And, I might add, 6 others on the court think she’s full of crap.

      Five, rich, old white men I would point out. You obviously have no idea what you are talking about, but then we already knew you are a vile racist fuckwad.

      • timb116 says:

        I was more interested in the supposed “6 others who think she’s full of crap.” We don’t know that. We know Justice Kennedy thought the more important point was the election, wherein a conservative once again tells people their Federal right to Equal Protection is not as important as a State Constitution.

        All we know is that the asshole Roberts didn’t agree with her.

      • rea says:

        And Breyer’s seperate concurrence by no means amounted to calling Sotomayor “full of crap”–it was more a mtter of finding an arcane reason to dodge the issue.

    • NMissC says:

      There’s many a day that I think that at least five of the guys on that court are fully of crap.

    • JustinV says:

      You are not familiar with judicial opinions as a kind of writing, or the scope of what is considered “legal reasoning” as a matter of practice. You would not embarrass yourself so much if you did not speak on subjects about which you are ignorant. I hope this helps you improve your life so that you are less angry and prone to public mistake. You are welcome.

  8. Anonymous says:

    His argument certainly is not “legal reasoning.”

    While that is true, this case should be a ‘slam dunk’ and should never had to go before the supreme court.

    Equal protection is not equal protection from society, it means equal protection ‘under the law’, which is government.

    • sharculese says:

      The constitution of the state of Michigan isn’t the government now?

      Wingnut lies about America move waaaaay to quickly for me to keep up with. Why do you guys hate this country so much?

      • Aimai says:

        Anonymous’s people have been living all up and down this country since history and they owe their ownership of it to the improvements they’ve made in the water, grazing, and legal system. Don’t argue with him. Its common sense and common law to boot.

    • JustinV says:

      You are mistaken about what “equal protection under the law” means in this context.

    • joe from Lowell says:

      Equal protection is not equal protection from society, it means equal protection ‘under the law’, which is government.

      Ah. That must by Brown vs. Board of Education limited itself to equalizing the classroom experience, and didn’t concern itself with dynamics in the broader society after the students left school.

      OH, WAIT….

  9. Gwen says:

    This is one of those weird cases where I would (if I were one of your lifetime tenured judicial overlords) be tempted to vote “concurring in part, dissenting in part, and concurring in the judgment of the Court.”

    Sotomayor’s dissent is spot-on but am not sure there is sufficient adverse impact or invidious intent to find that this the Michigan law is an illegitimate exercise. I think Sotomayor states the correct rules of law but applies them incorrectly; I think the majority is both incorrect on the law and far too glib when Kennedy says there is “nothing in our laws” that might prohibit a state from rolling-back civil rights laws.

    • L2P says:

      Not unreasonable, but I disagree. After seeing what happened in California after the end of affirmative action, I don’t see anyway this doesn’t impose a significant harm on black and hispanic students.

      • Gwen says:

        And I get riled up every time the courts try to kill the top ten percent program or post-Hopwood AA at the University of Texas.

        I’m just kind of suspicious of counter-majoritarian rules being applied to facially neutral legislation. Unlike Roberts, I can overcome my skepticism.

        I guess one question is this — is Michigan contemplating adopting a top-nth percent rule like Florida or Texas? While not as strong a remedy as affirmative action, it definitely helped.

        If Michigan didn’t adopt an alternative approach in the wake of banning affirmative action, then I guess I might be more willing to bite on a discriminatory impact claim.

        • Snarki, child of Loki says:

          Oh, yes, they’re planning on automatic admission for students within the top 10% of optical reflectivity.

          The Irish kids are very happy.

        • Linnaeus says:

          I guess one question is this — is Michigan contemplating adopting a top-nth percent rule like Florida or Texas?

          None on the horizon that I know of. There was talk of it when the affirmative action ban went into effect, but nothing came of that.

        • L2P says:

          California has automatic placement, but it ends up funneling black and hispanic kids to second-tier UC schools. This helps black kids get into Riverside or Davis, but good luck getting into UCLA, Berkeley, UCSB or UCSD. I have a hard time seeing this as any better than class-based programs for dealing with racial disparities.

          The problem with any “race-neutral” program is that America’s equality problems aren’t race-neutral. Maybe I’m just a crazy liberal, but I see any “race-neutral” program as actively racist unless there’s a really good reason for it.

          • MAJeff says:

            The problem with any “race-neutral” program is that America’s equality problems aren’t race-neutral.

            This right here.

            And those problems are the result of several centuries of intentional deprivation and exploitation, which continues to this day.

      • Most Favoured Commenter says:

        “I don’t see anyway this doesn’t impose a significant harm on black and hispanic students.”

        Getting admitted to college doesn’t matter so much if you don’t graduate, and URM graduate rates have now increased in states that eliminated AA. Google mismatch theory for some good reasons to be against AA.

        Absent here is any evidence of intent to harm minorities, and in a state that voted for Obama by large margins twice.

        “I think this law has disparate impact” should not be enough to make it violate the Constitution.

        • DrS says:

          Absent here is any evidence of intent to harm minorities, and in a state that voted for Obama by large margins twice.

          Well, that’s certainly *one* way to summarize the state politics of Michigan…

        • L2P says:

          I think any solution that involves, “Well, black kids aren’t prepared for first-tier universities so they should be happy with the second-tier” is so wrong I can’t even…

          If you want to design a policy guaranteed to replicate current racial equality forever, I strongly encourage the “We’ll continue to make black children pay for the civil war until they prove they’re as good as white kids” as your solution. Otherwise, come up with something better.

          • $$$ says:

            The disparity in completion rates for rich and poor students has grown by 50% during the past 20 years. I suspect some of those ‘unprepared’ black kids are having difficulty unrelated to academics.

    • Scott Lemieux says:

      As I said, I think Breyer’s concurrence is a very reasonable argument; it would have upheld the amendment without effectively overruling the political-process cases.

  10. Anonymous says:

    Ya know, getting out of the realm of ‘legalese’ and just reasoning this out leads me to believe the court did the right thing for a couple of reasons.
    1) Let states decide this stuff. They wanna screw over some of their citizens because they were born with a particular color of skin…fine.
    2) Minorities and the grievance industry has, for half a century, wanted ‘equality’. Well, favoring some at the expense of others is not that. It wasn’t under Jim Crow and it’s not under Affirmative Action.

    • JustinV says:

      “They wanna screw over some of their citizens because they were born with a particular color of skin…fine.”

      This is a misunderstanding of the legal reasoning of both sides of the case and it is profoundly undemocratic and counter productive. You also misunderstand what is generally meant when academics, lawyers, advocates and interested citizens talk about “equality.” You have substituted a simplified formal meaning that is not current. You should read more about Constitutional Law and American History so that you do not misunderstand so badly. I can recommend some introductory texts for you so that you can understand the debate you seem interested in.

    • sharculese says:

      So now that we’ve made it clear that you’re sulk has not legal grounding, you’re trying to find another excuse for it?

    • MAJeff says:

      ….the grievance industry….

      So, you’re whining about the existence of Fox “News” now?

    • DAS says:

      Let states decide this stuff. They wanna screw over some of their citizens because they were born with a particular color of skin…fine.

      And what of the citizens who get screwed over? It seems anonymous must rather dislike the 14th amendment and is generally upset about who won the Civil War.

      • efgoldman says:

        It seems anonymous must rather dislike the 14th amendment and is generally upset about who won the Civil War.

        Well, rather JenBob does or not, it’s clear that Roberts and his henchmen wish effectively to repeal both the 14th and 15th amendments.

    • calling all toasters says:

      Let states decide this stuff. They wanna screw over some of their citizens because they were born with a particular color of skin…fine.

      Huh. I’ve always said that our conservatives would be OK with bringing back slavery, but I really didn’t expect any of them to admit it.

    • Jeremy says:

      1) Let states decide this stuff. They wanna screw over some of their citizens because they were born with a particular color of skin…fine.

      We tried that method already. After a Civil War, we amended the Constitution to not allow that. And then quickly went back to doing it for another hundred years. Now we’re trying to undo the lingering effects of those centuries. Or, we would be if reactionaries like you didn’t have a Supreme Court majority.

  11. Greg B says:

    Justice Sotamayor’s opinion is an excellent response to Roberts’ argument that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” and it is certainly the most appropriate response for this context.

    But we should not overlook that Roberts’ point is incredibly stupid for another reason. Roberts was arguing against allowing a government to treat people differently based on their race as part of an attempt to address racial discrimination. His argument incredibly suggests that we cannot allow a government to do something that we do not want private individuals to do, despite the fact that we routinely allow government actors to do things citizens can not do, and have done so throughout history. Roberts’ line is not just dumb for the reasons so much of libertarian jurisprudence is dumb. It is first week in law school dumb, and an incredible error for a judge.

    Shuld we apply Roberts’ rule in other contexts? Should we bar police officers from pulling over people who are speeding because the cops would have to go faster to do so and “the way to stop speeding is to stop speeding”? Should we bar cops from using their firearms to prevent a criminal from murdering an innocent person because “the way to stop shootings is to stop shooting people”? Good grief.

    • Snarki, child of Loki says:

      “The way to stop discrimination based on race is TO PUT HEADS OF RACISTS ON STICKS”

      Bet my plan is more effective.

    • Sly says:

      Shuld we apply Roberts’ rule in other contexts? Should we bar police officers from pulling over people who are speeding because the cops would have to go faster to do so and “the way to stop speeding is to stop speeding”? Should we bar cops from using their firearms to prevent a criminal from murdering an innocent person because “the way to stop shootings is to stop shooting people”? Good grief.

      TWO WRONGS DON’T MAKE A RIGHT!

    • Ed says:

      Roberts is open and candid about being a big fat racist.

  12. timb116 says:

    Someone needs to make fun of Roberts’s silliness. His line was so clever that it omitted the part where “separate can be equal.” I’m sure that was accidental that the Chief Justice favors a roll-back of Brown

  13. tonycpsu says:

    I strongly support affirmative action, and the text of Sotomayor’s dissent certainly resonates with me, but doesn’t the political process doctrine essentially say that the Court can apply heightened scrutiny to any law that disadvantages any minority? I certainly would approve of that, but that’s not my understanding of how the Court has ever interpreted precedent. If, as I suspect, that’s not the case, what exactly constrains the Court’s ability to nuke any ballot initiative or state/local law that has a negative impact on minorities?

  14. Ezra says:

    “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”

    In the most literal sense I’m sure that’s true. However, the SC only has control over a small part of human society. Until discrimination in the parts of society it does not control ceases, for it to prevent the part it does control from counteracting that discrimination, is to be effectively pro-discrimination.

  15. ns says:

    Were the dissents disagreeing with the outcome of the case or only the specious reasoning of the majority opinion?

    IMO Affirmative action should be seen as constitutional and I happen to agree with some form of it in terms of policy. But so far as I know, the lack of affirmative action or the removal of affirmative action has never been considered unconstitutional.

    Are people asserting that the lack of affirmative action amounts to a lack of equal protection of the law? What legal reasoning did the appellate court use?

    I like Sotomayor’s writing but I don’t see how federal courts can overturn the Michigan law without effectively forbidding states from ending affirmative action programs if they so choose, even though they were under no obligation to establish one in the first place.

    Or are we wishing for a federal ruling mandating racial preferences? Good luck with that.

    • Joe says:

      The logic of the dissent is that for certain groups it is being made harder to obtain change in the political process. For those, they have to obtain an amendment to the state constitution to change the rule. Others, they can simply use regular political processes. If the policy here was passed by regular processes, Sotomayor said it might be legitimate. It is akin to the difference between the Hawaii legislature being allowed to block same sex marriages and some other state taking that power away selectively.

      • Joe says:

        The last portion of the dissent responded to comments by various justices in this case & others that the measure here was simply doing what the Constitution requires. The substance of the AA question — as compared to the procedural political process question — was not immediately at issue. All the same, it clearly is relevant and hangs over the whole thing. The weight of her dissent does suggest though that true equality requires some sort of affirmative action, so removing it would be looked upon suspiciously.

  16. Drew says:

    And Breyer disappoints again.

  17. Sebastian H says:

    The problem with the political process doctrine is that there aren’t just majorities and minorities. Here for example discriminated against Asian students end up completely unmentioned. As the US grows more heterogenous the number of cases where you easily line up “minorities” all on one side of an issue will continue to shrink.

    • Mayur says:

      As an Asian, I will simply say that until they eliminate legacy and weird geographical criteria for admissions (and BTW, athletic criteria, which exist irrespective of actual university magnet policies for supporting Div I athletics), no one has a right to touch affirmative action.

      I come from pretty much the most favorable environment for university admissions preparedness (1%er NYC prep school, lots of activities, high academic standards, 1600/800 SAT/ACT scores), and I didn’t get any of my school picks. But it wasn’t at all because of AA/Latino students! For one thing, literally *every single one* of the AA/Latino kids in school with me was a HeadStart/Prep for Prep graduate, meaning that they had already been chosen from a tiny group and had to run the gauntlet. For another, I had been rejected from schools to which students in the bottom 25% of my class who had legacy family admissions had been accepted. Then there were the students whose parents greased the skids in various ways, the children of famous people, et cetera…

      All of this leaves me with the clear feeling that affirmative action (a) doesn’t do enough to equalize the opportunities that should be available for immigrant/minority young people and (b) is A BARE MINIMUM for what we need to do. If I didn’t support it as flat-out reparations for slavery and Jim Crow (which I do), I would still support it as a needed bulwark against rich white folks rolling over every single formative opportunity set out there.

      And to the haters: I challenge you to introduce ONE case in which you can provide evidence of being rejected from a critical university or job opening because of a less-qualified minority candidate who clearly did not belong at the institution in question. One.

  18. Concerned_Citizen says:

    “Sotomayor’s dissent is perhaps her strongest work yet.”

    Meh. Overly emotive and legally weak are the two descriptors that come to mind. She had stronger work on the 2Cir.

    That said, why did Roberts even bother with his concurrence? (Speaking of things that are “weak”.)

    And Scalia’s maundering concurrence could have gotten his points across in 1/3 of the space wasted. Reading it makes you wonder who really wrote his really good, well reasoned dissent in Prado Navarette v. California? (Read it if you haven’t – illegal search case where his dissent was joined by all of Sotomayor, Ginsburg and Kagan and without separate dissents of their own)

    • Erik Loomis says:

      Weak and emotive. Two words never used to describe professional women.

      • Concerned_Citizen says:

        Cheap shot, Loomis.

        I’ve used the same language (and considerably more often, given gender distribution of judges) about opinions authored by males.

        Sometimes a cigar is just a cigar, you know.

      • Concerned_Citizen says:

        And oh, crap, and surely you’ll be castigating me next for saying Scalia’s opinion maundered.

        He’s OLD, you know. Surely describing the opinion of an old man as “maundering” is blatant age discrimination, right?

        What, no objection to such thinly veiled ageism?

  19. Concerned_Citizen says:

    Amazingly echoic amplification chamber you’ve got going here, by the way.

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