Another Perspective

Sotomayor and Toobin Push Bigotry by Association

No disagreeing without being disagreeable.

By 5.1.14

UPI
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Sonia Sotomayor pulled her punch, ever-so-slightly, last week. But where the Supreme Court justice stopped, journalists such as Jeffrey Toobin of the New Yorker are only too happy to tread.

To review: In Schutte v. BAMN, the Supreme Court upheld a voter-enacted amendment to the Michigan Constitution that prohibited the use of affirmative action in public higher education. But it was Sotomayor's blistering dissent that made waves when the decision was announced.

She writes in it that the amendment unconstitutionally restructured the political process, and “uniquely disadvantaged racial minorities.” To place this alleged-discrimination in context, she traced a historical arc of our nation’s “long and lamentable record of stymieing the right of racial minorities.” Majorities years ago denied African-Americans the right to vote, imposed poll taxes, and prohibited school bussing. For Sotomayor, a vote of the majority of Michiganders to ban affirmative action--the very act six Justices found constitutional—is just the “last chapter of discrimination.”

Traversing this retrospective, Sotomayor integrates segregation with banning racial preferences into a unified and uninterrupted account of discrimination. This historical narrative deeply upset Sotomayor’s colleagues. Justice Antonin Scalia charged that it was “doubly shameful to equate ‘the majority’ behind” the Michigan amendment “with ‘the majority’ responsible for Jim Crow.”

Which brings us to the heart of the question: The debate over affirmative action divides the nation. Some argue that it perpetuates discrimination by judging people based on race, while others contend the opposite is true, that considering race is the way to end discrimination. Both sides of the debate have arguments in their favor, for sure. But does holding the former opinion make one “out of touch with reality,” as Sotomayor suggests? Many who hold the latter opinion, including two Justices of the Supreme Court, argue just that.

This is where Sotomayor pulled her punch: “I of course do not mean to suggest that Michigan’s voters acted with anything like the invidious intent of those who historically stymied the rights of racial minorities,” she writes.

Sotomayor does posit that some Michiganders might have supported the amendment “out of racial animus.” But her preferred mode of criticism is to suggest that the other side, even if not motivated by racial animus, is simply ignorant. She scolds her colleagues and writes that their “refusal to accept the stark reality that race matters is regrettable.” (For emphasis, she repeats the phrase “race matters” ten times in the span of four paragraphs). Making it personal, she faulted Chief Justice Roberts’s famous assertion that, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” But turning Roberts’s aspiration on its head, Sotomayor explains, “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.”

This prompted a rare response from the usually even-tempered Chief Justice. “People can disagree in good faith on this issue,” Roberts wrote, “but it similarly does more harm than good to question the openness and candor of those on either side of the debate.” Calling those who voice genuine opposition in good-faith “out of touch,” is just a weak attempt to stifle debate.

No one is so naïve as to think that all vestiges of racial discrimination have been wiped away. Recent statements by Donald Sterling and Cliven Bundy bear witness to this fact.  But equally significant has been the universal condemnation and ostracization of these newly crowned pariahs.  Bundy was prematurely ejected from his fifteen minutes of fame. Sterling was bounced out of the NBA with a lifetime ban, and will be forced to sell his team.

But all of this, to New Yorker columnist Jeffrey Toobin, just proves that Sotomayor was right. In a piece titled “Chief Justice Roberts, Meet Bundy and Sterling,” Toobin baldly asserts that to the Roberts Court, “there are no Bundys and Sterlings,” as this “ugly corner of contemporary American life…is entirely invisible in recent Supreme Court rulings.” The unfortunate subtext of Toobin’s column is that those who oppose affirmative action are on the same wavelength as Cliven Bundy and Donald Sterling.

Contrary to Toobin’s assertion, this is not a country “where the Bundys and Sterlings still hold considerable sway.” Even the Chief Justice’s oft-cited claim in the Voting Rights Act case that “times have changed,” does not in the least suggest that the change is complete. Toobin writes, “The vile words of the rancher and the basketball tycoon showed just how right Sotomayor was.” Yet, the reaction to Sterling and Bundy shows that Sotomayor is at most only half right.

Last year, dissenting that the Defense of Marriage Act should have been upheld, Roberts cautioned his fellow justices “not to tar the political branches with the brush of bigotry.”  This advice applies equally in the context of affirmative action. We are an evolving nation, with differing visions of how to further pursue a vision of equal justice under the law. The wrong answer is to use bigotry by association to discredit the other side. The right answer is to resolve these questions in open debate.

We know which of these options Sotomayor and Toobin have picked. Which will the rest of us choose?

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About the Author

Josh Blackman is an assistant professor at the South Texas College of Law and the author of Unprecedented: The Constitutional Challenge to ObamacareHe blogs at www.joshblackman.com.