Justice Sotomayor, Speaking Truth to Power

affirmative action wallpaper toles
(Tom Toles via GoComics.com)

Forget whining about the Notorious RBG, I want a movement to urge Chief Justice Roberts to retire for the good of the nation.

John Cassidy at the New Yorker, “Another Good Day for the Conservative Backlash”:

It’s been almost fifty years since Richard Nixon settled on his “Southern strategy” of mobilizing white voters alienated by civil-rights reforms. Almost the same amount of time has elapsed since the John Olin Foundation and other conservative groups set out to rein in the nation’s courts, and, in particular, the Supreme Court, which had played a key role in expanding the civil-rights agenda…

In some parts of the country, though, and especially in the realm of the law, the backlash is still thriving, and Tuesday was one of its best days yet. In the case of Schuette v. Coalition to Defend Affirmative Action, the Supreme Court, by a 6-2 vote, upheld a 2006 Michigan constitutional amendment that bans consideration of race in admissions to the state’s universities. But the majority decision, written by Justice Anthony Kennedy, went well beyond that. Without saying so explicitly, it appeared to give its approval to ballot initiatives designed to roll back affirmative action in other areas as well, such as hiring employees, awarding contracts—and ending racial segregation. In effect—and, in the case of the Court’s conservatives, surely in intention, too—the justices on the majority suggested that if voters in individual states want to throw out laws designed to counter America’s long history of racial discrimination, that’s fine by them, and perfectly constitutional….

It was left to Justice Sotomayor, in a long and passionate dissent, to point out some of the practical implications of the majority ruling. She cited figures and charts showing how the proportion of minority students at public colleges in Michigan and California has declined sharply since the states’ assault on affirmative action began. “Between 2006 and 2011, the proportion of black freshmen among those enrolled at the University of Michigan declined from 7 percent to 5 percent, even though the proportion of black college-aged persons in Michigan increased from 16 to 19 percent,” Sotomayor wrote. And, evoking one of Justice Roberts’s famous lines from a previous affirmative-action case—he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—Sotomayor added,

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.

Joe Cascarelli at NYMag highlighted a different section of Justice Sotomayor’s dissent:

… “We are fortunate to live in a democratic society,” she began. “But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitu­tion places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws.”

“The Constitution does not protect racial minorities from political defeat,” Sotomayor wrote. “But neither does it give the majority free rein to erect selective barriers against racial minorities.”

The court, she continued, “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.” …

Finally, Dahlia Lithwick, at Slate, on “What We Talk About When We Talk About Talking About Race“:

… 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.”…

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…

Roberts makes a substantive point in his rebuke of Sotomayor: Racial preferences may lead minority students to suffer shame and self doubt from racial preferences and that it is not “out of touch” to suggest that affirmative action doesn’t remedy race problems. But his deeper, sharper, point is that it is bad for the national dialogue about race for jurists to accuse one another of bad faith and lack of candor. His defensiveness at having someone explaining the limits of his own understanding of racism is palpable. He feels that he has been called out, shamed, and silenced. It is not clear whether or not he understands that his horror at being condescended to, his opinion disregarded, is among the very experiences of racial injustice that Sotomayor is describing….

56 replies
  1. 1
    ulee says:

    that’s great it starts with an earthquake, birds and snakes and aeroplanes, Lenny Bruce is not afraid.

  2. 2
    cokane says:

    I’d rather see any of the other three conservative justices retire first

  3. 3
    Cacti says:

    The current SCOTUS majority is far more consistent with the High Court’s history of comforting the comfortable and afflicting the afflicted.

    The Warren/Burger era was a historical aberration.

  4. 4
    Roger Moore says:

    It seems to me that Roberts is taking the Plessy side of things while Sotomayor is taking the Brown side. The essence of Plessy was that it was fine to have laws that were intended to have discriminatory effects as long as the authors included some pious words about not discriminating, while Brown said you had to judge these things by their actual effects.

  5. 5
    Anne Laurie says:

    @cokane: Scalia, Alito, and Roberts are all going to die a lot sooner than Roberts. Also, while even the densest voter understands what the Terrible Trio stand for, a lot of ‘reasonable people’ think that nice young John Roberts must have a point, being as he is so soft-spoken & nice, even though he’s at least as virulent a rightwing fanatic as his ‘team’. He’s the SCOTUS version of Paul Ryan.

  6. 6
    OzarkHillbilly says:

    It is not clear whether or not he understands that his horror at being condescended to, his opinion disregarded, is among the very experiences of racial injustice that Sotomayor is describing

    Let us just start with the fact that he doesn’t have a clue, and then move on to the fact that those are among the least of the racial injustices in America.

  7. 7
    Roger Moore says:

    @cokane:

    I’d rather see any of the other three conservative justices retire first

    That’s a tactical mistake. Roberts is both the most influential by dint of being Chief Justice and is likely to have the longest career ahead of him. Father time is likely to get rid of Scalia, Thomas, and Kennedy before too much more time passes, but he’s likely to take a lot longer before collecting Roberts.

  8. 8
    Woodrowfan says:

    t is not clear whether or not he understands that his horror at being condescended to, his opinion disregarded, is among the very experiences of racial injustice that Sotomayor is describing

    He neither knows, nor does he care…

  9. 9
    ulee says:

    Satomayor is such a sweetheart. Roberts is an idiot.

  10. 10
    p.a. says:

    I want them retired, but want them to live long enough to see their legacies equated with Taney and Plessy

  11. 11
    Cacti says:

    @Roger Moore:

    That’s a tactical mistake. Roberts is both the most influential by dint of being Chief Justice and is likely to have the longest career ahead of him. Father time is likely to get rid of Scalia, Thomas, and Kennedy before too much more time passes, but he’s likely to take a lot longer before collecting Roberts.

    Thomas is not that old. Only 65.

    Scalia is 78, and Kennedy will be 78 in July.

    For the good guys, Ginsburg is 81 and Breyer will be 76 in August.

    Wouldn’t mind seeing Breyer retire. He’s probably the least liberal of the liberal bloc.

  12. 12
    Higgs Boson's Mate says:

    This is another WTF moment for me. These battles were fought decades ago and now I see them being fought again. How sad.

  13. 13
    Villago Delenda Est says:

    Damn uppity Latina keeps pissing in John Roberts’ cheerios.

  14. 14
    Villago Delenda Est says:

    @Roger Moore:

    while Brown said you had to judge these things by their actual effects.

    What a concept! Man, no one has ever imagined that before! Certainly not John Roberts.

  15. 15
    Villago Delenda Est says:

    @Cacti:

    The Warren/Burger era was a historical aberration.

    I agree, and the parasite overclass, though organs like the Olin Foundation and the Federalist Society, have worked ceaselessly to make sure the aberration stays that way.

  16. 16
    Samuel Knight says:

    Villago is absolutely right. The Warren era was the outlier in the Supreme Court’s history. In general it has been a regressive, backward institution that came up with astounding leaps of logic to defend the existing establishment. For example:

    1) Corporations are people with equivalent political rights,
    2) Money is speech.
    3) The 2nd amendment clause “for the purposes of well-regulated milita,” doesn’t exist.
    4) Racism shouldn’t really and thus doesn’t exist (which BTW ironically is almost exactly the Plessy logic.)

    The hard part is what you can anyone do about it?

  17. 17
    muddy says:

    @Anne Laurie: His face is like one of those troll dolls with the hank of crazy hair. I saw a photoshop of that hair on him and it was perfect. Can’t unsee it.

  18. 18
    TR says:

    Scalia’s death is the one to mark, because Thomas will die immediately thereafter, a ditto head to the bitter end.

  19. 19
    Roger Moore says:

    @Villago Delenda Est:

    What a concept! Man, no one has ever imagined that before! Certainly not John Roberts.

    Nor Scalia. He was the one who said the only right in a criminal trial is procedural, not factual. According to him, once you’ve exhausted your appeals, you’re out of luck, even if you find evidence that you’re actually innocent.

  20. 20
    maya says:

    John Roberts’ judicial idol must be that other Catholic Chief Justice who is so fondly remembered for the Dred Scott decision – in certain circles.

    Roger B. Taney

  21. 21
    cokane says:

    @Roger Moore: i don’t think this is true and history doesn’t really bear it out much. Rehnquist’s court passed a lot of liberal decisions. Remember Roberts voted to uphold Obamacare.

    Lastly, the court is mostly 5-4 on many controversial decisions (though 6-2 w/ Breyer here, so I dunno if you can condemn any of the cons for this case). Anyways 5-4 on things like VRA, campaign cash. So just about any of those 5 leaving is good.

  22. 22
    Calouste says:

    @Roger Moore:

    Well, if you pay much attention to burnsie’s comments on this here blog (not that I particularly recommend that), you’d know that’s exactly how law should be. According to him, Law is the important thing, not justice.

  23. 23
    newwave says:

    Good read.

  24. 24
    kindness says:

    Roberts has to know he is going to historically be linked to the likes of the Dred Scott era. I think he’s proud of that. Roberts…I have a bag of salted dicks I’d wish for you to choke on.

  25. 25
    GregB says:

    Chief Justice Rehnquist famously embellished his judicial garb with three gold stripes.

    Any word on when Chief Justice Roberts starts embellishing his with with a white hood?

  26. 26
    scav says:

    @Calouste: he does have that trick of mind — rhymes with certain forms of Catholicism where getting the ritual right, staying within and obeying the hierarchy is more important than mere faith, or spirit of the docterine. That sort of religiousity had its upsides for many native peoples though. Where protestant missionaries often went on and on, banging on about and enforcing inner belief, these sort of catholics didn’t much bother so long as one ticked certain boxes, showed up on Sunday and covered your privates. Who cared if that was Shango wearing St Barbara’s face or Ogun lurking behind St Peter.

  27. 27
    Betty Cracker says:

    @TR: LMAO!

  28. 28
    Schlemizel says:

    @Calouste: Well, if you pay much attention to burnsie’s comments on this here blog

    Actually you would be better off with some more enjoyable hobby like eating paint chips or self-flagellation.

  29. 29
    JPL says:

    The only hope is that one of the conserves meets their maker, whoever that may be. There will not be a liberal judge confirmed under this president. It won’t happen.

  30. 30
    KG says:

    @Calouste: courts of appeal are not places for facts to be determined, that is the job of the trial court. appellate courts are 99% of the time about procedure, they don’t get to conduct inquiries into the facts, and that’s where the saying “bad facts make bad law” comes from. that said, a good appellate court will consider how its decision will be interpreted by future trial courts when they apply the law to the facts. in cases involving constitutional law, the court probably should look to the social consequences of their decisions, but there are a lot of schools of jurisprudence that believe that isn’t the court’s job – instead the court should determine if the law comports with the constitution.

  31. 31
    Roger Moore says:

    @Calouste:
    I pay attention to Burnsie’s legal pronouncements when he backs them up with reasoned argument, i.e. approximately once in a blue moon.

  32. 32
    Roger Moore says:

    @JPL:

    The only hope is that one of the conserves meets their maker, whoever that may be.

    I don’t think that’s the only hope. I’m sure that there’s something they could do that’s so horrible that they would feel compelled to resign when news of it got loose. Given what kind of people they are, there’s even a good chance that some of them are just one leak away from being in that situation.

  33. 33
    Ruckus says:

    @Schlemizel:
    He does have that blind squirrel thing going on though. Every once in a while(a very, very long while) he does come up on the moral side rather than the legal side. It is nice sometimes to find out that there really isn’t a law when we mostly all think there should be.
    I can not believe I just defended burnsy. Even if only a little bit.

  34. 34
    raven says:

    Rev Al is showing some great footage Ali speaking truth to power.

  35. 35
    mai naem says:

    I don’t like the fact that RBG is old and has had cancer. I don’t like that Sotomayor is a diabetic. I don’t like that Breyer had that accident with his bike(at his age, one accident is the beginning of the end.) I hate to say this but there’s a very good chance one of ours is going to go first. But, lets not forget Roberts had that seizure or whatever it was a few years ago. Remember when Rehnquist died, it was a shock to everybody. It didn’t even seem like the WH was expecting it, even though it was old. I wonder if OConnor would have retired if she knew Rehnquist was going to go when he did. She may have become the Chief Justice.

  36. 36
    Roger Moore says:

    @mai naem:

    I hate to say this but there’s a very good chance one of ours is going to go first.

    That’s less of a worry, though, because the President is a Democrat, and there’s a good chance his replacement will be, too. If one of the liberal justices dies or retires in the near future, they’re going to be replaced by another person who will count as liberal by the current standards of the court and not a lot will change. If one of the conservative justices dies or retires in the near future, they’ll be replaced by somebody enough more liberal that the overall balance of the court will change a lot.

  37. 37
    Gene108 says:

    @kindness:

    I think Roberts is banking on his side being the victors, who will write the histories of this era.

    Taney’s side “lost” after nearly a century of struggle.

  38. 38
    Cacti says:

    @mai naem:

    Remember when Rehnquist died, it was a shock to everybody. It didn’t even seem like the WH was expecting it, even though it was old.

    I don’t really remember it being much of a shock.

    He was 80 years old had been battling thyroid cancer for almost a year.

  39. 39
    Schlemizel says:

    @Ruckus:
    Yes, and I read his comments and too I feel poorer for it. It seems at times he is more interested in starting a fire than lighting a lamp.

  40. 40
    Waspuppet says:

    “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

    I’d forgotten that pearl of wisdom. It’s his “separate but equal.”

  41. 41
    Baud says:

    Sotomayor has become my favorite justice. And it’s clear that the conservatives really hate her, which makes her even more likeable.

  42. 42
    Schlemizel says:

    @Schlemizel: meant to say “too often”

  43. 43
    Narcissus says:

    Kennedy is the worst. Screw that guy.

  44. 44
    efgoldman says:

    @Samuel Knight:

    In general it has been a regressive, backward institution that came up with astounding leaps of logic to defend the existing establishment.

    You forgot 1A: The plain language of the 14th and 15th amendments doesn’t mean what it says, and we are free to ignore it.

  45. 45
    efgoldman says:

    @cokane:

    Remember Roberts voted to uphold Obamacare.

    Yes he did, but he also created the escape hatch to allow the hillbilly states to leave millions of people uninsured.

  46. 46
    Fair Economist says:

    Sotomayor is, I think, the deepest thinker of the current justices. She gets that Citizen’s United stems from the nonsense idea that corporations are people and pushed to have it changed. I think pushing for a Constitutional amendment to that effect is the way to go. Let’s see the Republicans twist themselves into pretzels arguing against an amendment saying “Corporations are not people.”

  47. 47
    Ruckus says:

    @Schlemizel:
    Well said.
    I frequently read his comments second hand, when someone calls him out. Otherwise mostly I don’t bother. I have on occasion joined in with others calling him out but it seems rarely worth the time.
    But I haven’t placed him in Cleek’s bakery. Yet.

  48. 48
    dmbeaster says:

    @GregB: as soon as the Repub house impeaches Obama (Reinquist only used his striped robe for Clinton’s trial)

  49. 49
    dmbeaster says:

    @efgoldman: And that escape hatch was just made up baloney. Roberts is terrible as a judge unless you specifically wanted a political hack.

  50. 50
    dmbeaster says:

    @efgoldman: Sadly, that became the judicial reasoning within two decades of the passage of those amendments.

  51. 51
    Keith G says:

    @Cacti:

    The Warren/Burger era was a historical aberration.

    @Villago Delenda Est:

    the parasite overclass, though organs like the Olin Foundation and the Federalist Society, have worked ceaselessly to make sure the aberration stays that way.

    Contrary to how I felt in my salad days, I am beginning to think that America’s attempt at institutional progressivism is an historical aberration- about forty years more or less out of 238. That’s a bit more than 16%. The temporary ascendance of progressive policies (c. 1930 to sometime in the 70s) were ushered in with the help of historically cataclysmic events.

    I think what we are seeing now is the true character of American society.

  52. 52
    Lurking Canadian says:

    @Roger Moore: I suspect that if one of the conservative justices dies, the Rs in the Semate will fillibuster the shit out of any attempt to appoint a liberal (or even centrist) replacement, and the media will back them up by calling the attempt to replace the deceased conservative with a liberal “unprecedented court packing”.

  53. 53
    burnspbesq says:

    it appeared to give its approval to ballot initiatives designed to roll back affirmative action in other areas as well, such as hiring employees, awarding contracts

    I’m curious as to how the voters of one state can repeal a Federal law.

  54. 54
    Jebediah, RBG says:

    @Keith G:

    The temporary ascendance of progressive policies (c. 1930 to sometime in the 70s) were ushered in with the help of historically cataclysmic events.

    I think what we are seeing now is the true character of American society.

    If we aren’t able to beat back the fucking troglodytes, and they manage to make further cuts to social services and assistance, there will be an awful lot of of under- and unemployed, hungry, desperate people. That could be the start of a cataclysmic event that the modern right is too stupid to be afraid of.

  55. 55
    ...now I try to be amused says:

    @Higgs Boson’s Mate:

    This is another WTF moment for me. These battles were fought decades ago and now I see them being fought again. How sad.

    I feel like the US failed the final exam on the 20th Century and now must repeat it.

  56. 56
    C.V. Danes says:

    Shorter Roberts: The Constitution is color blind as long as the color is white.

    Shorter Sotomayor: Shame on you, a-hole!

    Shorter Roberts: How dare you shame me!

    This is why elections matter, and why Roberts is probably the most dangerous man in America in terms of the future of this country.

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