With her dissent of this week’s Schuette v. Coalition to Defend Affirmative Action decision, Justice Sonia Sotomayor spoke for, embodied, embraced and evoked the minority whose interests were at stake. (Patrick Semansky/AP)

Our constitutional conversation, as led by the Supreme Court, depends wholly on strong dissenters. They deepen our understanding of the charter and bring passion to the conversation. They also offer predictive guidance about the future impact of the Court’s choices.

Justice Robert H. Jackson’s dissent in the Japanese internment case, Korematsu v. United States, warned that undue obeisance to President Franklin D. Roosevelt’s claim of military necessity was a dangerous mistake, and years later the Court acknowledged that error. Massachusetts’ Justice Benjamin Curtis famously castigated the majority in the Dred Scott decision, which declared that all blacks — slaves as well as free — could never become U.S. citizens. Years later, the Civil War Amendments proved Curtis prescient. Justice John Harlan’s dissent in Plessy v. Ferguson, which upheld public racial segregation under the “separate but equal” doctrine, watered the ground that would give rise to the decision in the Brown v. Board of Education case. And Justices Thurgood Marshall and William Brennan vastly enriched our constitutional vision, and our political agenda, by arguing, all in dissent, that the Constitution protects the right to education, the right not to be executed by the state, and the need to use racial decision-making to redress the history of racial exclusion.

Sotomayor challenged a court enamored with post-racialism to step into her shoes, and to appreciate that but for old-fashioned affirmative action, she would not be among them.

With her opinion in this week’s Michigan affirmative action case, Schuette v. Coalition to Defend Affirmative Action, Justice Sonia Sotomayor has joined the list of the Court’s most formidable dissenters, and indisputably established herself as Thurgood Marshall’s rightful heir. Sotomayor cast doubt on the logic and anti-historicism of cases rejecting all rationales for corrective race-specific remedies but diversity, and at the same time compellingly demonstrated that in misconstruing the court’s precedents, the non-dissenters drove yet another nail into that lonely diversity rationale. Moreover, in a powerful echo of Marshall’s practice of teaching from his personal experiences, Sotomayor challenged a court enamored with post-racialism to step into her shoes, and to appreciate that but for old-fashioned affirmative action, she would not be among them. She spoke for, embodied, embraced and evoked the minority whose interests were at stake in Schuette.

The Michigan case turned on the fundamental constitutional principle that judicial solicitude is necessary to protect racial minorities lest their interests get swamped at the ballot box. Courts have long looked skeptically at rearrangements of democratic processes that effectively undermine unpopular minority interests. In 1960 the Court struck an Alabama law that turned Tuskegee into what one Justice described as an “uncouth 28-sided figure,” placing most blacks outside the city limits. More recently, in 1996, the Court struck a Colorado constitutional amendment that prevented cities from banning discrimination against gay people, rendering them, as the Court put it, “a stranger to its laws.” Michigan’s adoption of Proposal 2, a ban on the use of race-sensitive admissions in higher education, harmed minority interests — in this case, to educational access — just as clearly as did the Alabama and Colorado laws.

The Schuette plurality saw it differently. In their view, judicial interference in the democratic process whereby the majority of Michiganders voted down race-sensitive admissions would violate voters’ rights to make policy decisions for their state. But, as Justice Sotomayor pointed out, this view is defensible only if two things are true: first, if race-sensitive admissions policies are not in the interests of minorities, and second, if racial minority status is irrelevant to voting behavior.  Although neither of these things is empirically true, the plurality rests its decision on wishful thinking. Americans who elected a black president have shed the bad history that led Alabama to redraw the map of Tuskegee, and affirmative action harms minorities, is the thinking behind the reasoning. But what then, are we to make of polls that show that a majority of whites favor ending affirmative action in hiring, promotion and college admission while an overwhelming percentage of blacks believe they should be continued?

Schuette forcefully demonstrates how much ground has actually been lost in the affirmative action debate since the early 1970s.

Sotomayor’s dissent reminds us of the divide that continues to define us today. “Race matters,” she writes. “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?’”

As grateful as we should be for Justice Sotomayor’s marvelously well-documented dissent — it should be required reading in college classrooms — Schuette forcefully demonstrates how much ground has actually been lost in the affirmative action debate since the early 1970s. The Bakke case, decided in 1978, was only one of a series of cases raising challenges to affirmative action programs; others focused on leveling the playing field in communications, employment and government contracting. However, recently the Supreme Court’s singular focus has been on admissions decisions in the educational arena. The diversity exception that the court has grudgingly carved out of its prohibition on race-sensitive policies does not apply to programs redressing job discrimination and other forms of racial exclusion. These issues will have to wait for another court and another day.

Justice Sotomayor, our new great dissenter, has pointed out the way back to earlier, more sensible readings of constitutional text and the way forward to more realistic readings of social reality. Barack Obama chose wisely, for she has done much to emancipate his presidency.


Tags: History, Law, Race

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  • Jackie Ferrara

    Owen Roberts.

  • X-Ray

    Sotomajor did not get it right. One does not “help” discrimination by adding more discrimination. We cannot fix past discrimination by making more discrimination in the present. And that’s what we do when we take race, skin color, religion of sex into account in our affairs. It rightly called discrimination and has ben outlawed.

  • wpressey

    The majority opinion reflects the fact that most people, like Clive Bundy for example, will swear they have no “prejudice bone in their body” while simultaneously delivering frightful prejudicial swill in public no less. What do you suppose they do under the cover of darkness?

    • X-Ray

      Isn’t that covered by Freedome of Speech, even if you don’t agree with it?

      • wpressey

        Of course it is. That, however doesn’t make right. It just means that I can’t sue the jerk and win. It also means I can express my opnion about all of them.

  • disqcoduck

    Orwellian logic to pervert the truth. The “Great Dissenter” refers to Supreme Court Justice John Marshall Harlan’s dissent against Plessey v Ferguson, which, in 1896, codified “separate but equal” laws. In his dissent Justice Harlan calls for a “color-blind Constitution”.

    Justice Sotomayor calls for the opposite; that the Constitution cannot be “color-blind”.

    No doubt that Justice Harlan is rolling in his grave at the perversion of his legacy to attack those who want a color-blind Constitution and equality under the law for all citizens.

    • kwame_zulu_shabazz

      The perversion is yours. Harlan, like Sotomayor, courageously rebuked their colleagues for enabling the perpetuation of white supremacy.

      • disqcoduck

        Harlan advocated for a “color-blind” constitution. Sotyomayor argued for race “conscious” constitution. How are these the same?

        “Diverse with Preferences” has become the new “Separate but Equal”

        • kwame_zulu_shabazz

          Both Harlan and Sotomayor challenged the majority opinion which downplayed the pervasiveness of white supremacy. The fact that institutional white supremacy persists in 2014 should be deeply troubling for all Americans. But the opposite is true. Too many white Americans remain deluded by their collective privilege. You cannot correct centuries of white supremacy with color blindness because white supremacy is deeply entrenched in our institutions and our collective psyche.

          • disqcoduck

            This thinking is rooted in the 1960s, which was mainly a black-white dynamic at play. Other groups (Hispanics, Asians, the poor) were simply not part of the equation. They were simply ignored.

            Black owner of an NBA team? -yawn. Black chairman of the most important tech company in the world? who knew or cares that he’s black.

            Today, social and income mobility is the biggest challenge facing the country. The poor, regardless of race, have less access to quality education, decent health care, and less upward mobility than in the past. These things alarm me and worry me.

            A racist NBA owner? Don’t care honestly. But even he wasn’t stupid enough to hire unqualified people. He hired a black coach, used to have a black GM, and most of his players are black. He clearly hires who he thinks are the most qualified regardless of race.

            Compare Sterling to those who support college admission, hiring, awarding contracts based on race. Who’s deeds are motivated by race and look racist?

            Time to move on and face the realities, challenges of the 21st Century.

          • kwame_zulu_shabazz

            You say “poor, regardless of race, have less access to quality education” but miss the point that African Americans are disproportionately poor precisely because of white supremacy. So even if we target the poor exclusively, much of that number will be Black. Further, many poor white people perpetuate and promote white power. And even middle class blacks confront racism and the tendency towards downward mobility.

          • disqcoduck

            ps: If you read what Harlan wrote, he did believe in white superiority (as did most whites of his era).

            Harlan said that the constitution intended everyone, regardless of race to be treated the same. He fought against institutionalized white privilege. I don’t think Harlan would have argued for institutionalized minority privilege.

          • kwame_zulu_shabazz

            Yes, Harlan was a white supremacist, but as you note he said the Constitutions deems us all equal. Long after Harlan, white supremacy continued to be the law of the land up until the 1960s. Consequently, white privilege is deeply entrenched in our institutions. The only workable redress to actually pay attention to how racism has disadvantaged African Americans–“color blindness” cant fix that.

        • truth2power

          As Kwame has suggested, it is extremely difficult to overcome centuries of race based handicapping with purely colorblind policies. The use of race to correct centuries of bias (both constitutionally approved and otherwise) should not be unconstitutional. The need and justification for Afirmative Action (AA) should be obvious to anyone who has some concept of “fair play” or justice. If I break into your home and steal your possesions or if I attack you and break your legs, is it sufficient for me to simply appologize? Are you not entitled to some sort of compenstion? The real question isn’t whether or not there should be AA, but what form should Afirmative Action take.

        • truth2power

          BTW take a look at if you want to really understand how deep the rabit hole goes.

  • PaulD

    The Great Dissenter indeed. She also dissented in MacDonald v. Chicago which, given stare decisis, should have had no dissent whatsoever assuming someone who truly believed in the judicial system, and Constitutional amendments, we have. No. Instead, she chose to be an activist judge.