Opinion: Sonia Sotomayor's Dissent On Affirmative Action Will Bear Test Of Time

Call it the Supreme Court smackdown. Last week, in Schuette v. Coalition to Defend Affirmative Action, the high court ruled 6-2 that voters can use the ballot box to ban consideration of race and sex in college admissions. Yet it was the impassioned dissent by Justice Sonia Sotomator that made headlines. “Sotomayor accuses colleagues of trying to ‘wish away’ racial inequality,” trumpeted The Washington Post. Sotomayor took 58 pages to call out the majority of the court for their dismissive views on race.

Sotomayor’s dissent was a bold reality check on the Roberts court. She has shown herself to be an able steward of the Court’s tradition, precedent, and guarantee of fairness and justice for all.  

— Raul Reyes

Sotomayor gets it right. In Schuette, the plurality of the court disregarded legal precedent, constitutional theory, and their own judicial responsibility. Their decision has opened the door for more bans on affirmative action – thereby closing the door of opportunity for Latinos, African-Americans, women, and other minorities.

The Schuette case arose from a ballot measure in Michigan known as Proposal 2. It prohibited public colleges from giving preferential treatment to anyone based on race, sex, ethnicity or national origin. Although Proposal 2 passed in 2006 with the support of 58 percent of the voters, it was found to be unconstitutional by a federal appeals court.

In overturning the lower court – and upholding the ban on affirmative action – the Supreme Court reasoned that it was important to defer to the will of the voters. In the controlling opinion, Justice Anthony Kennedy writes, “There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”  Except that there is: In 1982, the Court ruled that a Washington state ballot measure banning the use of busing to desegregate public schools was unconstitutional.

In fact, the Court for decades has held that it is wrong for a majority of the voters to alter the political process in a way that infringes upon the rights of minorities (this precedent even has a name, the “political process doctrine”). As Sotomayor points out, “Our Constitution places limits on what a majority of the people may do.”  Her dissent lists numerous instances throughout history where the Court has upheld this principle. As recently as 2008, California’s voters passed a ban on same-sex marriage (Prop 8) that was later found to be unconstitutional. So it is troubling that in Schuette, the Court seems willing to cast aside its responsibility to protect the civil rights of all Americans in favor of “majority rules.”

Sotomayor also sharply challenges her colleagues’ inability or refusal to understand that racial inequality persists today. In 2007, Chief Justice John Roberts wrote that, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  Not true, according to Sotomayor: “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.”

There is great irony in the schism in the Court over Schuette. During Sotomayor’s confirmation hearings, much was made over her past remarks that a “wise Latina” might be able to draw a better judicial conclusion that someone without her life experience. Yet that is exactly what has occurred. Sotomayor understands the real-life consequences of the Schuette decision (Michigan’s Proposal 2 has already resulted in a 25 percent drop in minority representation in the state’s colleges and universities). Sotomayor understands that the Schuette decision will likely embolden other states to introduce anti-affirmative action measures, which will limit the ability of African-American and Latino students to access selective colleges. Sotomayor understands, as she puts it simply, that “Race matters.” Most of her colleagues, unfortunately, do not.

Meanwhile, affirmative action remains popular with the public, because they recognize the importance of a diverse academic environment. Last month, the Pew Research Center found that 63 percent of Americans think that affirmative action is a “good thing,” compared to 30 percent who are against it.

True, affirmative action has suffered a major setback with the Schuette decision. However, Sotomayor has written an eloquent dissent that will bear the test of time. Consider that other notable dissents, such as Justice Robert Jackson in Korematsu v. U.S. (arguing against the Japanese internment camps) and Justice John Harlan in Plessy v. Ferguson (arguing against the “separate but equal” doctrine in public education) are still studied today. Or that racial issues continue to roil our society, as evidenced by the recent furors over racially-charged remarks by Nevada rancher Cliven Bundy and L.A. Clippers owner Donald Sterling. Race matters, indeed.

Sotomayor’s dissent was a bold reality check on the Roberts court. She has shown herself to be an able steward of the Court’s tradition, precedent, and guarantee of fairness and justice for all.