Justice Sonia Sotomayor’s recent dissent was “overheated” and fueled by “emotion,” not to mention “legally illiterate and logically indefensible.”
Those are just a few of the conservative reactions to Sotomayor’s dissent from a Supreme Court decision upholding a referendum in Michigan that banned affirmative action in university admissions, collected by TPM. The title of John Fund’s column in National Review, “Raced-Based Preferences Forever,” offered an implied comparison between Sotomayor and segregationist George Wallace. An unsigned editorial called her a “self-described ‘wise Latina’” whose reasoning came from “elevating ethnic-identity politics over the law.” Stephen F. Hayes of the Weekly Standard declared on Fox News that “This was a decision written by somebody who was writing about emotion.”
Conservatives haven’t talked about Sonia Sotomayor like this since … well, since she was first nominated. At the time, conservatives eagerly misrepresented Sotomayor’s “wise Latina” remarks about how having experienced discrimination would impact her perspective as a judge, calling her comments “racist,” even as they applauded Justices Samuel Alito and Clarence Thomas for making similar statements. They knew after all, that Alito and Thomas would have the right kind of “empathy.”
Back then, National Review writers concluded that Sotomayor was “dumb and obnoxious,” but that she’s “female and Hispanic and those are the things that count nowadays.” One writer acknowledged that it “sticks in my craw” that Sotomayor pronounces her last name the way it’s supposed to be pronounced. Conservatives who otherwise find Justice Antonin Scalia the life of oral argument attacked Sotomayor’s “temperament.” And popular right wing radio host Rush Limbaugh called her “a reverse racist,” appointed by “the greatest living example of a reverse racist,” Barack Obama.
Tuesday’s case itself was not about affirmative action directly, but about whether or not it was constitutional for Michigan to amend its state constitution to ban affirmative action. Sotomayor argued that had that policy been implemented through other means, it would have been fine, but amending the state constitution was unconstitutional because it “changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.” Many people — and not just conservatives — disagreed with her, and felt Michigan voters had the right to make that choice. Given that the right won handily, with the Supreme Court ruling 6-2 in favor of the ban, the conservative fixation on Sotomayor may seem somewhat puzzling.
Rather than just being about Michigan, the decision turned into a brawl over the high court’s approach to racism. Sotomayor directly attacked the conservative principle that acknowledging persistent racial inequality is itself racism, and that government efforts to deal with that inequality are morally equivalent to Jim Crow. Where Chief Justice John Roberts once wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Sotomayor responded in her dissent that “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’s dissent struck right at the moral weakness of conservatives’ argument, which is that government efforts to remedy racial inequities that are the legacy of centuries of discrimination are morally equivalent to state-backed white supremacy. From a historical perspective, Sotomayor noted, superficial race-neutrality is no guarantee of equal protection because those committed to invidious discrimination find creative ways of reaching the same result. Refusing to consider the impact of such policies, she wrote, “works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”
While conservatives lauded Michigan for mandating “race-neutral standards” in college admissions, they were hardly “race-neutral” in evaluating Sotomayor when she was first chosen. Suggestions that she couldn’t control her temper, was less intelligent than other nominees, or was only chosen for her racial background, not only echoed well-worn racial stereotypes but poignantly illustrated how easy it is to find arbitrary reasons to deem an accomplished person of color unqualified for the job.
Sotomayor has spoken openly about how affirmative action benefited her, something conservatives have seized on to diminish her success. As ABC News noted, in her autobiography My Beloved World, Sotomayor wrote that “to doubt the worth of minority students’ achievement when they succeed is really only to present another face of the prejudice that would deny them a chance even to try.”
As Sotomayor noted in her dissent, with the Supreme Court’s decision Tuesday, thousands of black and Latino students won’t get the same chance as the children of alumni, a “preference” in college admissions that substantially benefits white, wealthy applicants at the expense of others. In 2009, conservatives tried to shame Sotomayor into silence and defeat for acknowledging the ongoing effects of racism. If they seem angrier in victory than they should be, it might be because she has refused to cooperate.
Adam Serwer