A supreme theft

This week, Donald Trump announced his nominee to fill the Supreme Court vacancy that arose after Justice Antonin Scalia’s death during President Obama’s second term in office.  The nomination is the result of stolen goods that Senate Republicans housed for ten months and then giftwrapped for Trump upon taking office.  The coming Supreme Court fight is thus a bridge between the radical insurgent GOP of the Obama years to the vengeful and autocratic Trump regime taking shape—a fight that, for good or ill, will bind Trump and the GOP more than ever.

On March 16, 2016, President Obama nominated Merrick Garland to fill the Supreme Court seat vacated after Justice Scalia’s death.  Garland was the widely respected, long serving Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, the second highest court in the land.  An ideological moderate, Garland had previously gained acclaim from influential senators on both sides of the aisle.

The Republican-controlled Senate refused to even hold a hearing or give Judge Garland an opportunity to make his case.  Instead, the Senate kept the vacancy open, denying Obama his constitutional prerogative to appoint a justice, and held onto the seat on the off-chance a Republican won the presidency in 2016.  This was an unprecedented abdication of the Senate’s constitutional duty to advise and consent upon the president’s nominee.

So the vacancy that Trump is now filling is the result of plunder committed by the GOP against the country’s first black president.  And that plunder was the culmination of a relentless effort to brand that president as illegitimate.  As Obama took office in 2009, Senate Republicans cast into minority opposition seized on their base’s fear and revulsion to Obama’s politics and identity and molded it into a legislative strategy.  Senate Republican leader Mitch McConnell vowed total resistance to the president’s supposed radical socialist agenda.  McConnell sought to deny Obama any stamp of bipartisanship, sullying the president’s popularity and lifting the Republicans’ chances to reclaim majority status in Congress.

Congressional Republicans did the work of tarring Obama as an ideological outsider.  Meanwhile, Trump was busy stoking fears of Obama as an ethnic outsider with a fraudulent birth certificate.  This all served to cement fear and paranoia in the minds of GOP voters that the White House was in illegitimate hands—even though that president was twice elected with a popular vote majority free of any foreign or law enforcement interference.  The Republican Senate’s theft of Obama’s last Supreme Court nominee was the final malfeasant act of eight years of delegitimization.

That is the legacy of Trump’s Supreme Court inheritance: one of theft and deceit.  The process for filling a seat on the country’s highest court is no longer governed by law or custom—and certainly not by the Constitution—but instead by raw power.  The operative principle now is that if Republicans have the power to deny a Democratic president a Supreme Court pick, they will do so.  It’s about power and nothing more.  Any other claimed principles—about letting the people have a say in the presidential election, etc.—are backward-manufactured rationales to justify a power grab.

Senate Democrats must now decide how to react.  Rightfully furious about their Republican colleagues’ egregious mistreatment of Garland, many are predisposed and ready to side with the demands of the party’s base to resist Trump at every turn.  Other Democrats worry about being blinded by rage and tripping into a fight that the party simply cannot win.

It’s true, Democrats will ultimately lose this nomination fight.  The left must understand the brutal math.  But that’s beside the point.  If Democrats think Senate Republicans will hesitate to nuke the filibuster on the next Supreme Court nomination if Democrats let this one go, they are deluding themselves.

This Court battle is not about the merits of the nominee.  And Democrats cannot to take the high road in a doomed attempt to save Supreme Court nominations from becoming a partisan race to the bottom.  Republicans are already running that race, and made clear with their treatment of Garland that the Supreme Court is no different from any other political contest.  Democrats have no choice but to engage in this fight or else make Supreme Court vacancies a one-way rightward ratchet where Democrats play by an old set of rules and norms that Republicans systematically obliterate.

If Democrats need a principle to justify fighting Trump’s nomination, here’s one: appointments should be required to get support from each party.  It’s hardly an unreasonable position—after all, Elena Kagan and Sonia Sotomayor both attracted bipartisan support.  And it wasn’t that long ago that Justice Ruth Bader Ginsburg was confirmed by the Senate 96-3.  This would call for a widely-approved consensus nominee—someone in the mold of, say… Merrick Garland, of whom Republican Senator Orrin Hatch once said would be a “consensus nominee” who had “no question” of being confirmed.

But here we are.  One way or another, Donald Trump, a popular-vote loser of dubious electoral legitimacy and of whom a growing majority of Americans disapprove, will fill the Supreme Court seat heisted by Senate Republicans from Barack Obama.  This joint operation binds Trump and the GOP closer than ever, as Republican senators gush over the credentials and qualifications of his pick, seemingly oblivious to the impeccable credentials and qualifications of the man they spurned, Merrick Garland.

This linkage is about more than just a single Supreme Court confirmation, however.  There is a direct line from a conservatism that once sought small government to one that increasingly vilified government—that sowed distrust in institutions and then actively worked to weaken those institutions, creating the vacuum of authority that is ripe for Trumpism.  For an ideology that once prided itself on restraint, respect for tradition, and deference to preexisting institutions, conservatism has clearly lost it way.  When followed to its extreme, the endpoint of conservatism is Trump.  It is eminently possible that in the long run, the strain of revolutionary conservatism that has prevailed on the right since 1980 is outright incompatible with liberal democracy.

King v. Burwell’s shadow constitutional avoidance

It has been nearly two months since the Supreme Court upheld the structure of ObamaCare for the second time in three years. The Court rejected a vision of the law’s insurance subsidies as inducements to compel state action, affirming the availability of these subsidies to insurance consumers nationwide.

It was a resounding victory for the ACA and the Obama administration. Yet there was one curious absence from at least the surface of the Court’s opinion: there was no discussion of the troublesome constitutional implications of the challengers’ interpretation of the law and the need to avoid them.

But a closer view of the majority opinion — and its vulnerabilities raised by Justice Scalia’s dissent — shows that there might be more going on here. Though the Court seemingly avoided avoidance in King, perhaps the coercion issues nonetheless played a role in steering the Court away from the challengers’ interpretation and all of its federalism baggage.

As the challenge to ObamaCare’s subsidies wound its way through the lower courts, I advocated a sort of fail-safe argument for why the Court should endorse nationwide subsidies. This argument drew on the rule against coercing the states and the canon of statutory construction that cautions courts to avoid interpretations of laws that trigger constitutional issues. Putting these two doctrines together, I argued, should lead the Court to reject the challengers’ broadside to the ACA. It was a trump card; a last resort that struck at a potential Achilles’ heel in the challengers’ case.

I began writing about this argument on blogs and then in an amicus brief to the Court with my former professor Abby Moncrieff. Our brief’s argument gained traction at the Supreme Court’s oral arguments, drawing favorable pronouncements from both Justice Kennedy and Justice Sotomayor.

Yet when the opinion dropped, there was nothing at all about coercion or avoidance. Abby came to call avoidance the “argument that wasn’t.” But the more I think about the King opinion, the more I see shades of a more subtle form of avoidance. Ruling for the challengers would have required the Court to grapple with difficult constitutional questions, so the Court steered clear of this legal tangle and affirmed the Obama administration’s implementation of the ACA.

In our brief, Abby and I had argued that (1) Congress is constrained from imposing insurance market death spirals on states that decline to create exchanges, and (2) that this constraint comes from the Tenth Amendment’s anti-coercion principle — that Congress may not pose coercive inducements upon the states. Given the ambiguity of key phrases in the law like “such exchange,” the Court should avoid an interpretation that would threaten states with death spirals, thus affirming the availability of subsidies on all exchanges.

In the section of its opinion analyzing the “broader structure” of the ACA (the focus of my discussion here), a majority of the Supreme Court agreed with Point (1), but not on the grounds proposed in Point (2). Instead, the Court reasoned that the anti-death spiral constraint arose from the statute itself. “[T]he statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid,” Chief Justice Roberts held.

The problem for Roberts and the rest of the majority, however, is that the ACA never explicitly prohibits death spirals — that is, the anti-death spiral constraint does not arise from the plain text of the statute itself.   Just the opposite, in fact: as Justice Scalia points out in dissent, Congress explicitly enacted death spiral inducing regulations in the long-term care market and in the federal territories. “How could the Court say that Congress would never dream of combining guaranteed-issue and community-rating requirements with a narrow individual mandate,” Scalia asks, “when it combined those requirements with no individual mandate in the context of long-term-care insurance?”

Scalia’s point echoes the decision of a panel of the D.C. Circuit Court of Appeals ruling for the ACA’s challengers a year ago. To argue that Congress is still constrained from imposing death spirals on the states, one would seemingly need to look externally from the statute. One beckoning possibility is the Tenth Amendment. As I wrote last July, “states are entitled to special protections in our constitutional order that the territories and long-term care markets emphatically are not. [ ] One of these protections is the [Tenth Amendment’s] prohibition against federal attempts to coerce the states.”

So the majority could have intercepted Scalia’s objection by relying on an anti-death spiral constraint arising from the Tenth Amendment’s rule against coercion on the states. Yet the Court chose not to do so. Instead, the majority insisted on locating an anti-death spiral principle in the ACA itself, despite statutory text to the contrary. It grounded this principle in a different set of federalism considerations. Instead of focusing on top-down federalism — that is, limits on what the federal government can do to the states — the Court emphasized bottom-up federalism: the states’ roles as policy innovators and so-called “laboratories of democracy.”

In the early pages of its opinion, the Court traces the 1990s health reform efforts at the state level in New York, Washington, and Massachusetts. These states all attempted to expand coverage by imposing community rating and guaranteed issue without an individual mandate. All of these states fell far short of universal coverage, while thoroughly destabilizing their individual insurance markets. Only Massachusetts was able to successfully expand coverage and calm its insurance market by ultimately imposing an individual mandate.

In the Court’s understanding, Congress watched the 1990s reform efforts play out and lifted Massachusetts’s successful scheme for national primetime: reform based on community rating and guaranteed issue coupled with an individual mandate. Thus, Massachusetts became the national model for successful health reform.

By adopting this narrative of the legislative process behind the ACA, the Court reads an anti-death spiral principle into the law’s legislative history: If Congress wanted to turn the country into Massachusetts, then of course it wouldn’t put in place the kind of regulatory scheme that failed in New York and Washington.

However, the states-as-laboratories view of the ACA’s legislative history could have a darker spin, too. Just as Congress drew on Massachusetts as its chosen model for health reform, it could have drawn on the discredited reform efforts in New York and Washington to prod states toward establishing their own exchanges. That is, if Congress was such a keen observer of state health policy experiments, what if it had threatened the states with deliberate New York-style insurance market instability if they refused to adopt their own exchanges?

This punitive twist on states-as-laboratories federalism would be completely unprecedented — but it was exactly what the ACA challengers’ interpretation of the law entailed. As I wrote in June, such a reading of the law would “cast Congress in the role of evil scientist, resurrecting the failed experiments of the states to bludgeon its way to getting its chosen policies enacted nationwide.” This type of congressional threat would almost certainly require the Court to revisit its nascent coercion jurisprudence.

To avoid dealing with the coercion issue, the Court had to read the ACA in a broad, purpose-driven way. The Court’s thinking goes something like this: In passing the ACA, Congress’s primary aim was to expand health insurance, so it solely wanted to turn states into Massachusetts. It wouldn’t threaten some with becoming New York for the sake of promoting state-run exchanges (a deeply subsidiary goal of the law). Doing so would undermine the overarching aim of expanding health insurance coverage.

Now this is an eminently reasonable understanding of Congress’s priorities. Indeed, it’s a refreshingly broad-minded counter to the ACA challengers’ myopic hypertextualism.

But it also revives old school purposivist interpretation — a mode of statutory construction traditionally associated with liberal jurisprudence. The Court invoked the relatively barren canon of construction cautioning against negating statutory purposes, relying on New York State Dept. of Social Servs. v. Dublino, a case that has been seldom used since the 1970s, and a canon that inherently requires courts to first identify a statute’s overarching purpose based on its structure and presumed aims.

This is uncommon ground for Chief Justice Roberts and Justice Kennedy to tread. Judicial conservatives rarely rely on the supposed purpose of a statute to guide their decision-making. But in doing so in King, Roberts and Kennedy may have turned the ACA into what legal scholar William Eskridge calls a “super statute.”   Certain significant, high profile pieces of legislation are interpreted by courts with great deference to Congress’s legislative purpose. These statutes aren’t subject to plain meaning limitations, and seem to defy the typical rules of statutory interpretation.

So when Justice Scalia laments that King “changes the usual rules of statutory interpretation for the sake of the Affordable Care Act[,]” he’s not entirely wrong. The question is why the Court went to these lengths and bent some interpretive rules to arrive at its decision.

One plausible reason was that the Court really wanted to avoid delving back into coercion doctrine. At oral arguments, Justice Kennedy seemed persuaded that the challengers’ interpretation of the ACA presented a “serious constitutional problem” under the Court’s coercion holdings. Justice Sotomayor too was troubled by these constitutional implications in the challengers’ reading.

The problem with the Court’s anti-coercion principle, however, is that it opens a giant judicial can of worms. The rule against coercion is rife with line-drawing problems and malleable, poorly defined standards. Just how substantial does a federal inducement have to be to cross the line into coercion on the states? How burdensome does a conditional regulation need to be? The whole enterprise plunges the Court into endless difficulties.

Regardless of any line-drawing problems inherent in the anti-coercion constraint, it seemed crystal clear to me that threatening states with insurance markets wrecked by federal regulation — as ObamaCare’s challengers postulated — would be extremely problematic no matter where one draws the coercion-inducement line.

Rather than reckon with this outcome and revisit a vexing constitutional principle, the Court took a different route to reach the same result, upholding the ACA’s subsidies nationwide. To avoid even touching upon the coercion issue, the Court landed on an expansive reading of the ACA that, if anything, bolstered the law’s standing and reach. And it settled for reasoning with glaring weaknesses, teeing up Justice Scalia’s objections based on the federally induced death spirals in the CLASS Act and the federal territories.

Between the lines then, King might read like an odd sort of avoidance opinion after all in its contortions to avoid passing upon the coercion issues at play. Indeed, perhaps this is a pure from of avoidance: stretching alternative reasoning to avoid discussing or developing a constitutional doctrine at all. (If so, then King is the polar opposite of Chief Justice Roberts’s commerce clause opinion in NFIB v. Sebelius, wherein he fully analyzed the individual mandate’s commerce clause implications before invoking avoidance.)

This might explain some of the compromises and strains apparent in the Court’s opinion. In fact, its concluding language echoes that typically found in constitutional avoidance cases: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” (emphasis added)

A ruling for ObamaCare’s challengers would have forced the Court to directly confront the coercion issues embedded in the challengers’ interpretation. The complexities arising from these issues only made it more difficult for the Court to contemplate a ruling for the challengers.

Justice Kennedy said at oral arguments that the constitutional considerations are “in the background of how we interpret this [law].” If coercion added a judicial hurdle — even if only in the background — that kept the Court from ruling for the challengers, then the constitutional avoidance argument did its job in King.

The King is coming

King v. Burwell is imminent.  The resolution to the legal challenge to ObamaCare’s jugular is expected to arrive within a matter of days.  We’ll soon know whether the Supreme Court will allow the anti-universal coverage crusaders to radically expand the federal government’s power to dragoon the states.

The petitioners in King argue that Congress sought to manipulate state behavior in an unprecedented way.  Specifically, the petitioners argue that by passing ObamaCare, Congress posed the following choice to the states: establish an exchange and enjoy a fully functioning universal healthcare scheme, or decline to establish an exchange and endure deliberately imposed federal regulatory havoc on your insurance market.

The latter choice is implicit from the very structure of ObamaCare.  The law’s insurance expansion is based on a system of consumer protections, individual mandates, and government subsidies.  The consumer protections guarantee insurance coverage for the pre-existing sick.  The mandate protects insurance markets from adverse selection by requiring people to buy into insurance risk pools preemptively rather than waiting until falling ill.  And the subsidies allow individuals to afford private health insurance — a necessity to equitably impose a mandate.

The petitioners argue that Congress threatened to unravel this tripodic structure in states that rejected the option to create a health exchange.  Under their theory, such states elected to forego subsidies.  This triggers the affordability exemption to the individual mandate, releasing countless low- and middle-income people from the obligation to purchase insurance.  This in turn would upend individual insurance markets in these states, destabilized by the relative healthy opting out of insurance risk pools.

We know how the story ends in this regulatory environment.  States like New York, New Jersey, and Massachusetts have all tried this same untenable regulatory environment, and they each incurred moribund insurance markets, spiraling costs, and political frenzy as a result.  By trying to legislate against insurance discrimination and medical underwriting without adopting costly subsidies and mandates, these states quickly saw their insurance markets seize up and their health premiums vault beyond the reach of consumers, sending their political leaders scrambling for a quick fix.

The only true fix was found in Massachusetts, where Governor Mitt Romney enacted a system of mandates and subsidies that ultimately became the model for ObamaCare.  This shored up the insurance market while guaranteeing coverage for all.

The King petitioners posit that Congress threatened to impose the dismal fate of past futile efforts of the states on those that decline to create exchanges.  Economic theory and historical practice show that this would wreck state insurance markets, plunging markets into death spirals and launching an insurer exodus.

Such a threat would seem to be plainly at odds with Supreme Court precedent.  Our federalist system prevents the federal government from coercing the states to enact its preferred policies.  Threatening to decimate insurance markets via regulation if the states decline to enact a federal program would seem to be precisely such an illicit threat.

That’s why the Supreme Court ought to avoid this loaded interpretation that the petitioners propose in King in favor of the government’s reasonable, utterly unproblematic reading of the law.  Under the government’s reading, the Affordable Care Act authorized the Department of Health and Human Services to create “such exchange” in any state that elected not to create its own — and that “such exchange” meant an exchange that could pay out insurance subsidies.

At oral arguments in King, at least two justices — Justice Sotomayor and Justice Kennedy — seemed drawn to this reasoning. They worried about the coercive implications of the cramped statutory reading that the petitioners put forth.

And earlier this month, the Court denied cert in another ObamaCare case, signaling that it would not be redefining its coercion jurisprudence this term.  This is good news for the law’s supporters.  For the Court to endorse the petitioners’ position in King, the Court would have to confront coercion head-on and explain how the coercion here is different from that under the NFIB Medicaid expansion.  And the Court can still use coercion in a constitutional avoidance context in King without creating new precedent.

The Supreme Court has long romanticized the idea that the states are laboratories of democracy, testing out policy experiments on a small scale to see which are ready to go national.  Indeed, ObamaCare very much fit this mold, picking up Massachusetts’s successful health reform as the model for national reform.

Entirely novel, however, would be a statutory structure that cast Congress in the role of evil scientist, resurrecting the failed experiments of the states to bludgeon its way to getting its chosen policies enacted nationwide.  Such a tactic would be a cynical perversion on traditional federalist principles.  And ObamaCare supports ought to hope that the Supreme Court doesn’t allow it.

Who’s afraid of a wise Latina?

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.”