The Supreme Court of the United States (SCOTUS) held in an opinion yesterday, by a vote of 6-2 (Justice Elena Kagan did not participate in the case, presumably because of a conflict of interest based on her work as Solicitor General), that a Michigan lower court did not have the authority to set aside a measure approved in a 2006 referendum supported by 58% of voters, banning the use of race as a criteria in college admissions. Justice Sonia Sotomayor wrote the dissenting opinion; Justice Ruth Bader Ginsburg joined her in opposition to the ruling.
This may prove to be a pivotal decision in what has become a national debate over the issue of affirmative action. It prevents publicly funded colleges (in Michigan) from extending “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin.”
That is a lofty sounding pronouncement, and to many, undoubtedly sounds perfectly reasonable. But, is it?
Well, that depends on your point of view. Three Justices, Chief Justice John Roberts, Justice Anthony Kennedy, and Justice Samuel Alito, wrote the majority opinion. Justice Kennedy wrote:
“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.”
Three other Justices, Antonin Scalia, Stephen Breyer, and Clarence Thomas joined in the prevailing opinion. Interestingly, as it turned out, this opinion resulted in the gentlemen of SCOTUS seeing it one way, and the gentlewomen of the Court seeing it quite differently. In toto, the Justices wrote more than one hundred pages, spanning 5 distinct opinions, to get to this ruling.
- Justice Kennedy, joined by Chief Justice Roberts & Justice Alito wrote the main opinion for the majority
- Justices Scalia & Thomas added a separate element to the majority opinion
- Justice Breyer, normally aligned with the liberal wing of the Court offered his spin on the majority opinion
- Chief Justice Roberts made a terse retort to the minority opinion
- Justice Sotomayor, joined by Justice Ginsburg, wrote the 58 page minority opinion; longer than the other four opinions put combined
Speaking of Justice Sotomayor’s opinion, she channeled denizens of pop culture, from Director Haim Tabakman’s 2009 movie “Eyes Wide Open,” to Dr. Cornel West’s 1994 book, “Race Matters,” when she wrote:
“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 member 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.”
However, Justice Sotomayor did not just use pop cultural icons to make her point. She recast Chief Justice Roberts’s remarks from a 2007 opinion, in which he wrote:
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The comeback was not lost on the Chief Justice. It led to his own rejoinder, which he wrote separately from Justice Kennedy:
“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.”
In the parlance of the streets, that exchange amounts to a catfight amongst the Supremes. Justice Sotomayor, an alumna of Princeton University, and of Yale University’s Law School, is a product of affirmative action (not unlike her countervailing cohort on the Bench, Justice Thomas). Her opinion may have reflected that cognizance. She, unlike Justice Thomas, recognizes and has embraced the correlation between affirmative action and her current success. She wrote in her 2013 memoir, “My Beloved World,” ”For years, I lived the day-to-day reality of affirmative action.”
In articulating her message, Justice Sotomayor referenced directly the confounding exigencies of history, including slavery and Jim Crow, but she also spoke about the contemporary malevolence of “recent examples of discriminatory changes to state voting laws.” She may have lost the battle, but she certainly made her point.
There are a number of States that currently employ an affirmative action ban, including Florida, California, Texas, Washington, and of course, Michigan. It is considered likely that yesterday’s SCOTUS results will energize efforts to increase that number. From the erosion of the Voting Rights Act to the scuttling of affirmative action measures, the landscape across America is changing. In taking stock of the direction we often appear to be heading, I am loath to call that “exceptional,” but hey, that’s just me. For now, it is what it is, and what it is, is…”The Supremes Strike Another Blow Against Affirmative Action!” I’m done; holla back!
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