The single point on which Scalia and Sotomayor agree is that Kennedy has reinterpreted the 1960s and 1970s rulings beyond recognition. (Best Scalia zinger: “Moving from the appalling to the absurd.”) Scalia wants simply to overrule the old cases that worried about majorities trampling over minorities. He goes further, attacking one of the Supreme Court sentences most cherished by the left: a footnote in a 1938 case called United States v. Carolene Products. The case is about how Congress could regulate the sale of milk, but never mind: The crucial footnote (No. 4) observes that a law motivated by “prejudice against discrete and insular minorities” merits “more exacting judicial scrutiny.” Mountains have been made from footnote No. 4. Scalia brings in the bulldozers for mountaintop removal. He calls the footnote an “old saw.” He quotes an article called “Is Carolene Products Obsolete?” And he questions why black and Hispanics—14.3 percent and 4.6 percent of the population in Michigan, respectively—can’t wield plenty of political power.
In a lengthy dissent that she read part of from the bench, Sotomayor argues that the concern about minority rights in that footnote is at the heart of a host of rulings that promote “meaningful participation in the political process”—in particular, decisions that protected the right to vote by striking down poll taxes and literacy tests. Today, this doesn’t just mean “removing barriers to participation.” It also means “vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing.” In banning affirmative action, Sotomayor says, Michigan’s voters uniquely disadvantaged black and Hispanic voters by taking this tool away from the elected board members who set admissions policies for the state universities.
I still think there is a difference between a local ordinance that bans busing or fair housing, which aim for equal treatment, and a ballot initiative that takes away a preference based on race. That’s how I made my peace with the outcome today.
But I had my doubts when I got to a telling exchange between Roberts and Sotomayor. It’s over the basic underlying question that is nowhere resolved in this case: Whether affirmative action—or any awareness of race—is still needed or valid. Sotomayor stands up for the “importance of diversity in institutions of higher education” and despairs “how little my colleagues understand about the reality of race in America.” Race matters, she says, because of “persistent inequality in society.” She continues:
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.”
Roberts doesn’t let her have the last word. He quotes her “doubt” about belonging, and retorts that
it is not ‘out of touch with reality’ to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. 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. People can disagree in good faith on this issue.
I can’t read this without noting that in previous cases, Roberts has expressed his preference for color-blindness. This is where the conservatives on the court lose me. Good faith or no, it is at odds with reality to imagine that race no longer matters. I hope the states that ban affirmative action continue to enroll more low-income students as they also find ways to admit black and Hispanic applicants. But we still live in a world of race and class considerations. Not either/or.