Sotomayor’s Race Dissent

The most complete explanation of Barack Obama’s and Eric Holder’s reasoning on race.
By Daniel Henninger
April 30, 2014 The Wall Street Journal Click here for a pdf version

Attorney General Eric Holder, in a speech to Justice Department employees, praised Justice Sonia Sotomayor’s dissent in last week’s Supreme Court decision upholding Michigan’s ban on race-based admissions to its state universities. He called it “courageous and very personal.”

It was personal. Toward the end of her 58-page dissent, she said this about the six Justices who formed the plurality:

“More fundamentally,” Justice Sotomayor wrote, the plurality “ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.” Those colleagues are Chief Justice Roberts and Justices Kennedy, Alito, Scalia, Breyer and Thomas.

Justice Sotomayor’s dissent in Schuette v. BAMN provides the most complete explanation I’ve seen of the reasoning behind the views on race of President Obama and Attorney General Holder. Over five years, the administration has repeatedly challenged various states on their voting practices, intervened to alter the racial composition of public-school populations and racial patterns in housing. Disagreement between Democrats and Republicans over voter ID laws has been particularly contentious.

Some of this is politics. But some of it is belief about the status of race in America a half century after passage of landmark civil-rights legislation in 1964.

“Race matters,” Justice Sotomayor wrote. It matters “because of persistent racial inequality that cannot be ignored and that has produced stark socioeconomic disparities.”

In 2006, Michigan voters by 58% approved a constitutional amendment that forbids the use of race-based preferences for admissions to the state’s universities. Eight other states have similar bans, including California.

Michigan’s ban on race-based admissions, says Justice Sotomayor, is not the result of “invidious intent” to discriminate as in the past. Instead the Michigan “majority” resorted to something that she calls “the last chapter of discrimination.” Its admissions amendment unfairly “changed the rules” of the political process. Prior to the amendment, she says, minorities persuaded Michigan’s elected Board of Regents to use “race-sensitive” university admissions policies. The voters’ ban eliminated the Regents’ policy and therefore “burdened racial minorities.”

Some, including the Court’s majority, would say the amendment was a proper exercise of the democratic political process. Justice Sotomayor replies: “While our Constitution does not guarantee minority groups victory in the political process . . . [i]t guarantees the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals.” In Michigan, that goal was the value of “racial diversity” in the student body.

Equal protection, she adds, is about groups, not mere individuals: “Discrimination against an individual occurs because of that individual’s membership in a particular group.”

And so believes the Obama administration.

Last year, Justice sued to stop Louisiana’s school vouchers program, arguing that when black parents took their kids out of public schools to attend, say, a Catholic school, this increased “the racial identifiability” of the schools. That is, the abandoned public schools had too many white students and so were no longer diverse and had become unequal.

This presumably would also be the rationale for the Justice Department’s interventions against voter ID laws, most famously its lawsuit last year against North Carolina. By requiring an ID, the majority is “changing the rules” in a way that disadvantages black voters. In Justice Sotomayor’s words: “This means vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing.” These are what she calls “third-generation barriers.”

In the last line—a footnote—of his concurring opinion, Justice Scalia (joined by Justice Thomas) says that Justice Sotomayor is likening the “majority” in Michigan to the same “majority” who created the Jim Crow laws. She denies that. So what is an average voter supposed to believe?

The Sotomayor dissent in Schuette, as its supporters say, is an important statement of progressive belief about race. Let’s assume they, Justice Sotomayor, President Obama and Mr. Holder wish most Americans would agree with their point of view on race and so support it. If only all could read the Sotomayor dissent to render a national opinion about their racial views.

We can guess. I think it’s fair to say that many who read her reasoning on how Michigan’s voters or other “majorities” are using the political process to harm minorities and produce inequality in every aspect of American life would say: I just don’t get the argument. They might, for instance, ask her about the four-decade catastrophe of urban public schools.

The intricate case she is making about “third-generation barriers” to equality and such—arguments developed by liberal law professors the past 25 years—is not persuasive. I doubt an open-minded majority would agree with it. It could, of course, be imposed anyway by court mandate.

One is left to conclude from the Sotomayor dissent that no matter how much progress people think has been made toward fulfilling the mandate of the 14th Amendment, an argument of some sort will be fashioned to say that equality is forever disappearing toward the horizon, and unattainable. After 50 years, where does that leave us? Polarized.

Letters May 7, 2014
Racial Diversity Seems to Have Become an End in Itself
I’ve thought of racial diversity initiatives as a means to an end, but Justice Sotomayor seems to view racial diversity as the desired end of public policy.

Regarding Daniel Henninger’s “Sotomayor’s Race Dissent” (Wonder Land, May 1): Justice Sonia Sotomayor’s dissent in Schuette v. BAMN brings into better focus the Eric Holder-President Obama understanding of race and race relations in America. I’ve thought of racial diversity initiatives as a means to an end, a way to break down the separation that resulted from de jure and de facto segregation, and enable people to experience one another as fellow human beings. In that light I think it has been useful and has enjoyed a degree of success. But Justice Sotomayor’s opinion in the Michigan case and the Justice Department’s position in the Louisiana school-voucher case and voter-ID disputes seem to view racial diversity as the desired end of public policy. Anything that has the potential of reducing racial diversity, even in the smallest way, is suspect.
This is bizarre. Doesn’t such a policy assume that there are inherent differences in people based on race? Doesn’t it assume that a majority race cannot be expected to treat a minority race fairly on its own? Doesn’t it assume racial conflict as a permanent human condition? Aren’t these points of view, in fact, racist? We’ll never free ourselves completely from conflict, but we have made significant and important progress in accepting one another as equals. Attempting to maintain diversity in appearance through fiat doesn’t help. The Court’s decision allows the social process to play itself out with due regard to the facts and circumstances of time and place.
John D. Hatch
Tarpon Springs, Fla.
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That racial disparity is still a fact in America is undeniable. The Supreme Court’s ruling reminds us of our division on the question of how much government should do to try and rectify it. Let’s say we land on one side or the other of that divide based purely on whether we believe government action can be effective. Those among us who believe it cannot be are boosted by the Court’s decision. But there’s a bigger question for all of us here. If down the road we find racial disparity continues to persist with or without government action, is that OK?
Michael Young
Port Hueneme, Calif.
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Supreme Court Justice Sonia Sotomayor’s dissenting opinion in Schuette v. BAMN stands in stark reaction to the revolutionary idea that created the U.S. Constitution as a restraint upon the government. Justice Sotomayor envisions the Constitution as a restraint upon the American people.
Morgan Foster
Indianapolis
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If, as Justice Sotomayor insists, equal protection of “individuals” must be understood in the context of “membership in a particular group,” when can her version of racism be deemed defeated except when a plurality of oppressed “groups” achieves victory over the apparently monolithic “group” that does the oppressing? As the demographic trends of the so-called “minority-majority” accelerate America’s coalescence into a country with no racial majority, will the oppressing “group” still be deemed too powerful by progressive elites and their allies in federal government?

By emphasizing individual experience viewed in light of race, the Obama-Holder-Sotomayor race camp may effect a future outcome that is the opposite of what they claim to intend. Whether the Balkans in the 1990s, Czechoslovakia in the late 1930s or Ukraine in the present day, history provides stark examples of individuals acting in the name of “groups.”
Kurt Hofer
Altadena, Calif.
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A black attorney speaking to my high-school law class more than 30 years ago said that “when minorities start winning the game, those in power change the rules.” That is the constitutional wrong that Justice Sotomayor addressed in her dissent and that Daniel Henninger fails to adequately address.
But it was Justice Sotomayor who got it right. Her passionate, perceptive and well-reasoned dissent reminds us that what that attorney said to my class so long ago is still a reality, but one not permitted by our Constitution.
Rick Nagel
Mercer Island, Wash
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TOM PAINTER Wrote:
Sotomayor has been mis-educated – thanks to “progressives” in academia and “living constitution judges – and herself come to accept, an erroneous understanding of the “equal protection” clause.
It has NOTHING to do with any constitutional mandate on the use of federal authority to “make us equal”.
Example: A man applies for a liquor license, having observed he meets the qualifications for one and has fulfilled all the requirements of applying for one. His license is granted. A second man follows the same path and his license is denied. He sees that nothing other than his “race or national origin” distinguishes him from the man whose license application was approved. The “equal protection” clause can be the second man’s basis of a suit – the law was not applied equally, due only to his race or national origin. With some technical caveats that very simple example represents the form of circumstances that the equal protection clause was written to help prevent – a law as written not being applied as written on equal terms no matter someone’s race or national origin. That’s all.
The Michigan state constitutional amendment is in complete respect of the equal protection clause, while Sotomayor actually seeks to deny “equal protection” of the laws and have the law discriminate on the basis of race or national origin. Her’s is not a belief or respect for the Constitution but belief and respect only for a political agenda NOT supported by the equal protection clause.
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Charles Frederick Wrote:
Sotomayor describes herself, and these are her own words, as “a wise Latina woman with the richness of her experiences (who) would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
What hubris and what a sorry explanation to rationalize her radical leftist ideology
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Jonathan Murray Replied:
Diversity is a false front for affirmative action.
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Tom Painter
The “diversity” meme is inherently racist. It assumes you MUST think differently because of your race. From that erroneous meme Liberals have come to loath “minority” Conservatives who have broken out of the Liberals’ intellectual plantation and don’t fit the mold they have tried to CREATE for “minorities”.

Richard Davidson Replied:
I can tell you only this. When I started at Motorola in 1967, located in Chicago back then, minorities in the professional jobs were almost non-existent. When a friend gave me a tour a few years ago at their Schaumburg, IL site, the technical and management people were from every conceivable race, creed, nationality, and color. It was like a tour of the UN.
Something happened in those 40 years. Diversity is the corporate mantra. You explain it
The alleged benefits of diversity that you assert are unproven. There is evidence that diversity of thought is productive in places like businesses, but there is no evidence that diversity based on skin color confers any benefit to anybody except for affirmative action candidates and the industry that feeds off of them.
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DAVID KNUDSEN Wrote:
What is the evidence that diversity benefits minorities ?
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Michael Love Wrote:
Unfortunately, the hour is late and I have miles to go before I sleep but please ponder the entire context of the racial progress you allege. In 1960, a dark skinned American driving in most anywhere USA would have a significantly higher likelihood of being pulled over by the police. That hasn’t changed today. What has changed over the years is the rate of incarceration in our nation and especially of minorities. From 1980 to 2008 the rate of incarceration quadrupled in the United States from roughly 500,000 people to 2.3 million people. African Americans constitute nearly 1 million of this 2.3 million population. African Americans are incarcerated at a rate six time that of Whites. Examine the following from NACDL: Together, African American and Hispanics comprised 58% of all prisoners in 2008, even though African Americans and Hispanics make up approximately one quarter of the US population. According to Unlocking America, if African American and Hispanics were incarcerated at the same rates of whites, today’s prison and jail populations would decline by approximately 50%. One in six black men had been incarcerated as of 2001. If current trends continue, one in three black males born today can expect to spend time in prison during his lifetime. Five times as many Whites are using drugs as African Americans, yet African Americans are sent to prison for drug offenses at ten times the rate of Whites. It’s widely reported that 35% of black children grades 7-12 have been suspended or expelled at some point in their school careers compared to 20% of Hispanics and 15% of Whites. So what? Well that’s the actual progress in establishing racial fairness that has been made in American during the last several decades. The majority that Justice Sotomayor calls out is insulated or detached and apparently unable to see the broad picture in terms of our history or past their living rooms walls and further than their television sets. Those six justices and the author of WSJ opinion piece fail also to recall that protecting minorities from oppression by the oppressive majorities is part of the fabric of our founding ideals. Racism is alive and well. Bigots are not just occasional cranks–it’s not just the moocher rancher in Nevada or the twisted NBA franchise owner in Los Angeles. Racial bias still permeates everyday America, and when you look at the criminal justice system it’s like mounting a slice of America on a wet-slide to put under a microscope. Look objectively. Shuck your defensiveness and ideological agendas, the fashionable labels of liberal and conservative once unencumbered you too see the effects of racism in action as played out in our schools and our courts. The biggest change in racism from 1960 to today is that we give equality lip service and racial bias has been camouflaged. The majority via Schuette v. Coalition to Defend Affirmative Action simply yields to ocholcracy because in their myopia, they see racism as a problem of the past and now solved. What’s next? Perhaps allowing other states to reestablish segregated schools on ballot initiatives? It’s a slippery slope when the Court abandons principal.
On Ochlocacy, See John Adams, A Defence of the Constitutions of Government of the United States of America, Vol. 3 (London: 1788), p. 291
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WILLIAM L. JOHNSON Replied:
Michael,
You have no clue. The incarceration rate among blacks is because they COMMIT CRIMES! Have you ever been in the hood….at night? In Chicago, there are 20-30 shootings PER NIGHT on the weekends and 5-15 during the week. And that’s only the ones that hit someone. These black youth that you believe have been “railroaded” into jail, they have rap sheets a mile long……..literally, 4 to 8 PAGES of crimes that they have been convicted of before they are 21. I have 2 good friends who work in the system: a DA and a PO. I get to hear these stories all the time. How about the one with the liberal, lenient judge who lets off the 18 yr old defendant with only probation even in the face of a long rap sheet, and he gets rearrested within an hour because HE BROKE INTO THE JUDGE’S CAR TO STEAL HIS LAPTOP AND RADIO!
And I live in a retirement city, not an urban center
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Stephen Carroll Wrote:
(4) Sotomayor should step down. She has shown a level of bigotry that can no longer be tolerated in our country. We must end the hate in our country that this woman of the past has exposed in her thoughts. Obama is right. If you want to see just how ignorant a person is just let them talk. Racism at any level is wrong and coming from the uneducated it is regrettable. Coming form the educated it is inexcusable. Her sin is worse because she knows better. A step backward not only for whites but for blacks. All men are created equal. You cannot punish the sons and daughters for the sins of their parents. Obama, Holder and now Sotomayor have added mightily to racism. Are there any liberals of good heart or are you all blinded by your hate
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Douglas Oglesby Wrote:
.The Wise Latina was a leader in the National Council of La Raza. Ginsburg, the other dissenter, was general counsel of the ACLU. Ideology and, at least in Sotomayor’s case, outright racism trump objective legal analysis every time.
< “More fundamentally,” Justice Sotomayor wrote, the plurality “ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.”>
Is there any evidence that diversity as practiced by elite schools such as the University of Michigan, i.e. admitting minority students with lesser academic qualifications in the interest of “diversity,” actually benefits minorities who would not have gained admission on their merits? Is there any evidence that such students would not have been better served (e.g., higher graduation rate, success in STEM programs) in different universities that would have accepted them without racial preferences? Won’t the accomplishments of minorities admitted to elite universities on their merits be diminished because such universities also admit minorities with lesser qualifications?
How do Sotomayor and Ginsburg explain the academic success of Asian students, recalling that Asians were the victims of rampant racism (e.g., Chinese laborers in California goldmines and railroad construction in the mid – late 1800s, internment of Japanese in WWII)? Prior to the passage of California’s Prop 209, the number of Asians admitted to the UC system was cut back from what their number would have been under a race-neutral admission policy because their admission rate based on merit would have been vastly disproportionate to their representation in the overall CA population. Even today, whites are third in representation in the UC schools (36% Asian, 29% Hispanic, 27% white). Would the dissenters agree whites should be entitled to preferential admission?
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Steve Haynes Wrote:
We are fortunate that in this case, the Supreme court made the right decision, however we all know it seems to be hit or miss.
The bigger point is that our court is being used to make moral decisions and impose a social direction for our country. You can see how upset Sotomayor was for losing this opportunity. These people were not elected yet our country waits with baited breath for every decision they make. The framers never intended the courts to be used in this manner.
Obama and Dems are continuing to pack the courts so this avenue will no longer be an outlet of justice. Soon the Scalias and Thomases will be gone – they last bastions of our constitution. The lower courts are already filled with Sotomayors and Kagans – they legislate through emotion and agenda, there is no rule of law anymore. This is why Harry Reid went nuclear – no more objection to judges.
Our country is in dire need of citizens that are involved and active. Federal involvement is not enough, acting locally is critical – the leaders of tomorrow come from smaller government in state and city locations.
We are in a dangerous place, but through the citizenry things can change if we work together
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John Kelly Wrote:
Explaining Sotomayor’s opinion, Henninger said, “The voters’ ban eliminated the Regents’ policy and therefore [quoting Sotomayor] ‘burdened racial minorities.’ ” Any elimination of governmental privilege, whether that privilege is earned or unearned, “burdens” the formerly privileged. As Justice Sotomayor uses this arguement, she sides with former slave owners, who felt themselves unfairly burdened when the slaves were freed.
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Scott Horsburgh Wrote:
Here’s a radical idea. Instead of “affirmative action” based on race, why not give an additional boost to students who overcome adversity (poverty) and achieved anyway? Isn’t that what we should be trying to accomplish, give the benefit of the doubt to a kid that just missed the cut at an elite university, but didn’t have the advantage of living in an upper-middle or high income household? Is a poor white kid less deserving of a hand up than a minority kid from a high-income family?
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Anthony Brunsvold Replied:
Why is diversity merely skin deep?
Wouldn’t many of these same institutions benefit if they out reach to poor rural whites for example? Based on my experience most of the people at institutions of higher learning have not had much experience like them nor come from that background. Such whites could bring insights and experiences that are rather new to many on the college campus. Yet, for all the discussion of diversify one never hears about this kind of out reach.
Oh, based on my experience my guess is the answer (and it is a guess since I don’t know you personally) is that the Paula Dowlings of the world don’t mind their sons and daughters hanging out with a black liberal, a Hispanic liberal…. but to hang out (much less marry) a hick would be too much.
Liberal bigotry tends to just take on different forms but make no mistake it still exists
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Richard Davidson Replied:
It benefits society when fairness in hiring, housing, education, and everything else is the norm.
They said during the enactment of the Civil Rights Act that you could not legislate morality. We can, and we did. That is what George F. Will, the conservative commentator, said on an ABC This Week roundtable.