The Supreme Court recently handed down a controversial and stirring decision regarding a Michigan ban on race-based admissions policies. While the decision itself might not quite rise to the “landmark” status, Justice Sonia Sotomayor certainly made it a noteworthy case when she stood up after the decision was read and, in an unusual move, read aloud her own 58-page dissent. While much of the media has latched on to Sotomayor’s protestations that “race matters,” many have completely missed the point that the core of Sotomayor’s dissent is based in the role and legal purpose of the Supreme Court—which it seems her colleagues have forgotten.
The opinion of the court gets off to a strange start. Justice Kennedy (joined by Chief Justice Roberts and Justice Alito) opens the opinion by saying that the case is not about the constitutionality of race-based admissions process, but instead that it’s about whether or not states can democratically choose to ban such practices. This is all true, as the SCOTUS has dealt with the constitutionality of affirmative action programs quite a bit in the past.
But the conclusion to this line of reasoning seems to be completely ignorant of the role the Supreme Court plays in the U.S. political system. As SCOTUSBlog explains:
Kennedy pointed out that the Constitution protects not only individual rights, but also the collective “right of citizens to debate so they can learn and decide and then, through the political process,” take action together. The Court can’t decide that an issue like affirmative action is too hard or too “delicate” for voters to take on; doing so would be both an “unprecedented restriction” on the voters’ ability to exercise their joint right and “demeaning to the democratic process.”
In short, Kennedy believes that the Supreme Court can’t tell a state that a law it has passed through democratic means is wrong. He also believes that doing so would apparently be an “unprecedented restriction” on voters.
I can see why Sotomayor is so upset. If it weren’t for her blistering dissent, I would think that my education in Constitutional Law was all wrong.
The Supreme Court, ever since the passage of the Fourteenth Amendment, has had the authority to tell states that their laws are wrong—or at least unconstitutional. As Sotomayor points out in her dissent, states have a sordid history of passing laws that are both unconstitutonal and grossly racist. To name a few: grandfather clauses, Jim Crow laws, school segregation, etc. The Supreme Court has weighed in on a number of these, striking down many if not all of them—because they violated the Constitution.
So, for the majority opinion to say that the Supreme Court can’t do the same here just because it’s a state-enacted initiative borders on the ludicrous. Sotomayor is right to call her colleagues out on this grievous misunderstanding of the nature of their role in the United States.
Sotomayor’s claims that banning affirmative action programs is equivalent to enacting Jim Crow laws is certainly a controversial claim, and whether or not affirmative action actually helps sociopolitical minorities is in hot dispute. However, her dissent (and the fact that two others joined Kennedy in his opinion) certainly shows that the case should have, at least in part, been about the merits of affirmative action—and whether or not banning it does effectively bar people equal access to institutions.
Only after that analysis could the Supreme Court have fairly made a decision on the Michigan ban. It was a necessary component of this court decision which the majority opinion simply ignored—which is precisely what Sotomayor was so unhappy about.