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Point Austin: Race Does Matter

Sotomayor on the willfulness of judicial 'colorblindness'

By Michael King, Fri., May 2, 2014

It's been quite a couple of weeks for American racial relations. First there was the Cliven Bundy spectacle, in which the crackpot Nevada rancher who refuses to pay for his use (and abuse) of public lands was celebrated by right-wing media and gun-happy demagogues – among them Austin's renowned village idiot, Alex Jones. Then Bundy's remarks on "Negroes" and their formerly happy days as slaves embarrassed those defenders still capable of it (not including Jones, of course).

More recently, we've been treated to the disgrace and banning from the NBA of L.A. Clip­pers owner Donald Ster­ling, who privately revealed his appalling views on black people – he'd prefer they didn't attend the games of the Clippers' mostly black players – though he's been known publicly for decades to be a racist slumlord. Sterling also congratulated himself on his own beneficence in "giving" his employees salaries, and curiously blamed "the culture" for his own racist attitudes. When in Rome ... etc.

Meanwhile, Chief Justice John Roberts got his feelings hurt.

In his extremely brief, two-paragraph concurring opinion in last week's U.S. Supreme Court decision (Schuette v. Coali­tion to Defend Affirmative Action) – upholding the Michigan rejection-by-referendum of affirmative action in college admissions – Roberts made it clear he recognized Jus­tice Sonia Soto­may­or's jab at his previous glib formulation, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." In her dissent, Sotomayor countered that the true approach to ending discrimination is "to speak openly and candidly on the subject of race."

Instead of comprehending that distinction – that pretending racism doesn't exist is a form of willful blindness – Roberts whines, "People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate." (By contrast, in his concurrence with Clarence Thomas, Antonin Scalia just sneers at Sotomayor's notion that affirmative action benefits racial minorities – he knows better.) The Chief Justice is more concerned that some people might think badly of him than that minority residents of Michigan might be denied access to higher education, via majority-imposed "colorblindness."

Meanwhile, separately concurring Justice Stephen Breyer primly sidesteps the minority rights issue raised by the case, defining the question in narrowly majoritarian terms: Voters can choose whether to endorse affirmative action to benefit racial minorities – whatever the actual makeup of the voting public – and that's that.

By contrast, Sotomayor (joined by Ruth Bader Ginsburg) argues what should be obvious by now, even to unelected Supreme Court Justices: "our Constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws."

See No Evil

The whole group of opinions (the 6-2 vote had no majority opinion) is worth a read, not only for its substance but for what it reveals about the now-open tensions on the court. Sotomayor takes on her colleagues directly – for "how little [they] understand about the reality of race in America" – but there's also a sense that she knows she's swimming against the judicial and political tide (Roberts' ascension to and on the court was in part premised on his long opposition to "racial preferences"). She is as much addressing the public, and the future, about a subject on which her colleagues have decided to remain willfully ignorant.

"Yet to know the history of our Nation," Sotomayor writes, "is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process." She prefers the term "race-sensitive admissions policies" to "affirmative action," recognizing that universities (indeed, all public institutions) cannot truly address the long history of U.S. institutional racism by pretending it does not exist. But that's what the majority has decided. And she notes that the Michigan law now places unique obstacles before minority residents – while others can blithely continue lobbying for legacy admissions, athletes, special cases ... whatever. Only racial minorities are now banned from trying to overcome historical disadvantages.

Bluntly, Sotomayor says, Roberts' colorblind cliche is "a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as 'not sufficient' to resolve cases of this nature."

Open Our Eyes

Sotomayor, who read part of her opinion from the bench, appears to have few delusions about persuading her more reactionary colleagues to seriously address the real, ongoing 21st century effects of what W.E.B. Du Bois called "the color line." She's addressing history, and all Americans. If the last couple of weeks have taught us anything at all, we should have the empathy, and simple good sense, to listen well.

"In my colleagues' view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. 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. 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."

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