The Norman Transcript

Columns

April 27, 2014

Affirmative action finds brave defense

NORMAN — Good for Sonia Sotomayor.

She called out her U.S. Supreme Court peers for their dismissive attitudes toward our nation’s troubling racial history and their wishful thinking on how far we have come in such matters.

“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 wrote in a withering 58-page dissenting opinion.

The case, Schuette v. Coalition to Defend Affirmative Action, decided the fate of a Michigan law that bans the consideration of race in state college admissions. The Supreme Court voted 6-2 to uphold the law.

Eight states have outlawed race as a consideration in admissions at state universities. The court’s decision opens the door to voting majorities in other states to reach the same conclusion, without considering the historical burdens many minority people still struggle with — a stark break from the court’s past role as a guardian of fairness and justice for all.

Sotomayor, joined by Justice Ruth Bader Ginsburg, firmly chided the court’s majority. Justice Anthony Kennedy wrote the court’s opinion, which Chief Justice John Roberts and Justice Samuel Alito joined. Justice Antonin Scalia, with Justice Clarence Thomas concurring, also voted to uphold the Michigan law but offered a different opinion.

By writing her brave dissent, Sotomayor illustrated for America what she meant in a controversial remark she made during her Senate confirmation hearings. Remember that quote? The one where she said that a Latina jurist might “reach a better conclusion than a white male who hasn’t lived that life.”

That prediction has come true.

In this case, she showed herself to be a better guardian of a long legal legacy the high court set down in numerous prior decisions: protecting minorities from discriminatory laws enacted by electoral majorities. She accused her peers of abandoning that legacy. “We ordinarily understand our precedents to mean what they actually say, not what we later think they could or should have said,” she scolded.

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