Is it OK if we talk about race for a minute?
The U.S. Supreme Court’s decision this week in Schuette v. Coalition to Defend Affirmative Action, upholding Michigan’s ban on affirmative action, has been picked apart for the future legal implications, and the sharp language in the numerous opinions. But underlying the larger discussion of who gets to decide about matters of race—state citizens or federal judges—lurks a murky, and far more fascinating dialogue (if you can call it a dialogue at all) about how to talk about matters of race. This is not just a conversation about what the voters in Michigan thought when they passed a 2006 ballot initiative banning state institutions from using race as a factor in decision-making. It’s about a far bigger exchange, one that’s been going on for centuries: a knotty, crucial conversation about how justices tasked with making decisions about equality and political processes can talk to each other about race, history, privilege, and life experience.
The starting point for the most recent chapter of this knotty and crucial conversation is Chief Justice John Roberts’ famous getting-past-race language in a 2007 case about racial remedies and school busing, in which he wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Roberts used that turn of phrase to both highlight his own philosophy that the Constitution must be color blind, and also to flick at the proposition that the time for overtly racial remedies to historical problems must be put behind us.
Told, in effect, that race has no place in modern constitutional discourse despite the central role it has played in her own life, Justice Sotomayor pushes back on that formulation. Her dissent in Schuette starts from the implicit proposition that Roberts was wrong to close the door in 2007, and is wrong to do so today: “In my colleagues’ view,” she writes, “examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable.” Then she goes on to poke at Roberts with a sharp stick: “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.”
Now, Chief Justice Roberts has been called many things in his life. But there is something about being told that he is blind, clueless, and also silencing that affects him viscerally. His entire two-page concurrence in Schuette (he did not need to write anything, Anthony Kennedy wrote the controlling opinion) is a rebuke to Sotomayor; not on matters of doctrine, but on good taste and decorum in public discourse over race. It’s not just that he doesn’t like what she is saying. He doesn’t like how she’s saying it.
Writes Roberts: “The dissent states that ‘[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.’ And it urges that ‘[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: I do not belong here.’ But 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, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”
Sotomayor is not content to belittle Roberts’ formulation that racism will end when we stop helping minorities. She tells him that the act of ignoring pervasive structural racism is an abdication of judicial responsibility: “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.” Then, in what has become the most controversial element of an already controversial dissent, Sotomayor goes on to explain in starkly personal terms why race didn’t stop being an issue on the day Chief Justice Roberts called it on account of a busing program in a case from Seattle. She paints a picture that looks a lot like her own life.
“Race matters,” she writes, “Race matters in part because of the long history of racial minorities being denied access to the political process. ... Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. 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.’ ”
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