Sotomayor's Schuette Dissent

The Supreme Court today ruled that voters in the state of Michigan could amend their constitution in a way that harmed racial minorities by passing an amendment to ban race-based Affirmative Action. (The Court made clear that this case was not about the constitutionality of affirmative action itself.) In the 6-2 decision in Schuette v. BAMN, there was no majority agreeing on the reasons, but they did agree on the outcome. Justice Sotomayor wrote a powerful dissent, joined by Justice Ginsburg.

Notably, while consideration of an applicant's race was prohibited by the state constitution under the ballot initiative, no other factors (like legacy, geographic diversity, or athletic skill) were similarly made unconstitutional. An applicant who wants her alumni connections to be considered can ask the university to adopt a legacy-conscious admission program, but an African American applicant who wants a race-conscious admissions policy must persuade the entire electorate to adopt a constitutional amendment. The Court was asked if adopting the ban by constitutional amendment restructured the political process to the detriment of racial minorities and was therefore unconstitutional.

Six justices concluded that it did not. Justice Sotomayor's dissent frames the issue against the backdrop of history, up to political restructuring cases from earlier decades where the Court protected minority rights:

[T]o know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process. At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities out of the political process altogether by withholding the right to vote. This Court intervened to preserve that right. The majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too. The majority persisted. This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration. Although these political restructurings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally in the political process.

Sotomayor writes that the Court has ignored those precedents from decades ago in order to uphold Michigan's affirmative action ban. She also responded forcefully to Chief Justice Roberts' famous line from 2007 that "the way to stop discriminating on the basis of race is to stop discriminating on the basis of race:"

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.

There are millions of Americans who can attest to that.

PFAW Foundation