On Tuesday, the Supreme Court upheld a Michigan ballot initiative that bars public universities from considering an applicant’s race when making admissions decisions. The decision was hardly a surprise. Affirmative action’s days have appeared numbered since Justice O’Connor extended it a (completely unenforceable) 25-year lifeline in 2003. The Supreme Court has only become more hostile to affirmative action policies since O’Connor’s tepid endorsement, with the conservative Justice Alito replacing the former swing justice upon her retirement.
While Tuesday’s decision was never in doubt, what was noteworthy was Justice Sonia Sotomayor’s spirited dissent maintaining that, contrary to what judicial protestations of colorblindness would have us believe, race still matters.
In a lengthy dissent, Sotomayor objected to the Michigan ballot initiative as unconstitutionally changing the rules on minorities’ meaningful participation in the political process. But she went further, critiquing the conservative justices’ colorblind posture and asserting the vitality of race-conscious judging and policy-making. She took Chief Justice Roberts’s pithy maxim of colorblindness (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”) head-on, retorting: “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.”
She spoke about race discrimination in starkly personal terms, presenting it not as an archaic wrong long overcome, but rather locating it as a lingering problem in present day America. Invoking the implicit biases and microaggressions that continue to plague our race relations, Sotomayor wrote:
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.”
Her opinion is a robust defense of racial consciousness in our public policy in 21st century America. Naturally, conservatives were irate. The editors of the National Review blasted her opinion as “Orwellian,” as “legally illiterate and logically indefensible,” outing Sotomayor as a “naked and bare-knuckled political activist with barely even a pretense of attending to the law.” Weekly Standard editor Stephen Hayes told Fox News that Sotomayor’s decision was “written by somebody who was writing about emotion[.] . . . It was President Obama’s ‘empathy standard’ — that’s what he was looking for when he nominated her, that’s what I think he got.”
Setting aside the demeaning language about illiteracy and emotion (I’ll let Jon Stewart handle that in a Part II to this deserved take-down), the conservative response to Sotomayor is revealing. Recall the twin controversies during Sotomayor’s Supreme Court confirmation hearings. First, there was her contention that the perspective of a “wise Latina” brought added value to a judicial bench over and above what a white male can offer. Second, there was President Obama’s Rose Garden praise for Sotomayor’s empathy as a judge, which Hayes referenced. To conservatives, these traits portended that Sotomayor would judge based on lived experience and sympathy; that her jurisprudence would be guided by emotional instinct more than legal doctrine. Conservatives now point to Tuesday’s dissent and say: We told you so.
It is important to understand why empathy and perspective diversity are so threatening to conservatives. Empathy lies at the heart of the liberal vision. This vision asks us to relate more closely to one another as a singular people; to recognize obligations to the broader community – obligations that don’t necessarily stem from any personal debt or deed. It seeks to explode any isolated sense that we are merely a collection of atomistic individuals and center our public debates in a greater sense of social solidarity. Doing so requires asking us to relate to our neighbors both near and far. In a word, it asks us to empathize.
Sotomayor’s “wise Latina” remarks stood for the fairly unremarkable proposition that her day-to-day experiences were different than a white male’s; that a bench of diverse perspectives is valuable for understanding diverse sorts of cases that judges confront. The value of this diversity becomes vivid in Sotomayor’s intimate account of the debilitating everyday barriers large and small that minorities still face today.
But do empathy and lived experience appropriately inform a judge’s perspective? Do they make Sotomayor’s dissent “legally illiterate”? Certainly not. In fact, they are crucial to her argument for the constitutionality of race-conscious policies.
The Supreme Court says that racially-conscious policies like collegiate affirmative action must be justified by a highly compelling state interest. While we commonly understand affirmative action policies to be acts of reparative justice – redistributing resources to remedy social harm – the Supreme Court has only upheld college race-based admissions on the basis of the positive educational impact of a diverse student body.
The diversity interest is more politically palatable than outright racial redistribution. Its benefits are thought to be universal, as students of all colors gain from a multitude of classroom perspectives.
But it is also a weak justification. It leaves affirmative action policies vulnerable to attacks precisely like the one in Michigan. Because the legally recognized purpose of these policies is the educational benefits of diversity, prohibiting such policies doesn’t technically implicate constitutional protections afforded to minority “suspect classes” (like racial groups) under the Equal Protection Clause of the Fourteenth Amendment. Hence Tuesday’s unsurprising outcome.
What Sotomayor has done is make an honest and forceful case for racially-conscious policy. She’s disposed of the fictitious veil of diversity as a primary state interest, instead grounding the rationale for affirmative action in social justice. Racially-conscious policies are not foremost meant to enrich higher education with classroom diversity, but rather to right past and present societal harms wrought upon minorities.
Conservatives, of course, resist societal diagnoses of contemporary racial disadvantage. In the National Review‘s lambast of Sotomayor’s dissent, the editors attribute the struggles of minority college applicants to a failing public education system and to “the cultural anarchy that has imposed especially high costs on the children of black and Latino families.” These diagnoses place the burden of self-uplift on minorities, absolving the rest of us of any obligation.
Sotomayor, on the other hand, questions the racial innocence of our modern society. Continuing injustice and racial slights impose wrongs on historically vulnerable minority groups. Recognizing these wrongs and feeling an obligation to fix them is a product of social solidarity; of greater empathy.
Sotomayor’s dissent, though on the losing side of this case, poses an intellectual threat to the bootstraps-and-rugged-individualism brand of conservatism. It’s a rhetorically powerful counter-punch to the ascendant racial fiction on the Supreme Court. For if we take ownership of our history and our persistent social gaps seriously, feeling empathy and solidarity with all of our fellow citizens, purported colorblindness ceases to be an option. We must, as Justice Sotomayor says, “apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”