The nice thing about modern America is that, if you don’t like a certain form of reality, you can always make up your own version.
It helps to have a few federal judges in your corner — such as the ones currently busy with re-imagining marriage as an institution open, on an equality basis, to same-sex as well as different-sex pairings. Then there’s Justice Sonia Sotomayor, declaring that a call for no racial discrimination is tantamount to a call for racial discrimination of a very racial, and detestable, sort.
Joined by Justice Ruth Bader Ginsburg, Sotomayor last week let loose a blast at her U.S. Supreme Court colleagues for upholding, 6-2, Michigan’s right to amend the state Constitution with a prohibition against “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.” Well, I mean — wouldn’t we call such language a green light for preferential treatment? Sotomayor and Ginsburg would.
Look, said Sotomayor’s dissent: “As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”
We don’t have to slog through the tortured syntax of Sotomayor’s second sentence to understand that a key reality of modern life is the need to prevail, by whatever means: never mind distortions, never mind evasions, never mind outright lies. That we get what we want appears to be the main thing.
Observe Sotomayor (seconded by Ginsburg) in action. RACE MATTERS! (Would Sotomayor herself be on the court, at the expense of far more experienced jurists, is a question likely to have circulated in her own mind, many times.) TO RULE OUT RACE IS TO RULE IT IN!
Come again? You could probably argue something of the sort at a university debate tournament. From the high court, outrageous assertions take on another character. Sotomayor missed by one vote the joy of inviting Michigan voters — their own judgment being inferior to hers — to take a flying leap, and with them all other Americans doubtful of the logic of assigning rewards on the basis of “race, sex, color, ethnicity or national origin.”
She had scornful words for those high court colleagues whose respect for the Michigan outcome exceeded hers. Their views simply were “out of touch with reality.” This was to the extent that her own version of reality trumped competing accounts.
The new measure of reality in many former centers of civilization — e.g., Washington, D.C. — is the power of one coalition to set its notions and viewpoints (however eccentric or upside down) at such a height as to drive away opposed ideas. The people of Michigan, by Justice Sotomayor’s reasoning, lack the constitutional right to assert a definition of equality she sees as defective. She’ll tell ’em, by gosh, even if what she tells them has similarities to the claim that up is down, red is green, war is peace.
Yes, the late George Orwell saw it coming. It is hard to imagine Orwell expressing surprise or shock at the willingness — the eagerness — of a political faction to tie facts into bowlines and square knots while claiming brazenly to be doing just the opposite. A society without a moral center — ours, for instance — is up for grabs. The shouters have only to shout more loudly than anyone else.
The Constitution was meant, at the start of our national life, as a kind of sheet anchor keeping us generally true to the early ideals. It kind of worked until it no longer worked. “We are under a Constitution,” Chief Justice Hughes acknowledged, “but the Constitution is what the judges say it is.” And that was before Sonia Sotomayor had even been born.
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