The Supreme Court unfortunately, yet unsurprisingly, continued its march toward an anti-discrimination jurisprudence that favors claims of the racial majority over those of minorities in its recent decision upholding Michigan’s constitutional amendment banning affirmative action in Schuette v. BAMN. The Court’s internal drama on the issue of race, most notably between Chief Justice John Roberts and Justice Sonia Sotomayor, provides an important opportunity not only to celebrate the authority that Justice Sotomayor commands on the issue of racial discrimination, but also to remember that it is exactly this authority that almost kept her off the Court.
Justice Sonia Sotomayor wrote a lengthy dissent in Schuette in which she directly pushes back against the conservative justices’ conception that race-consciousness is itself an evil that must be defeated. Sotomayor’s voice is an important counterpoint to the conservative wing of the Court that appears to be blind to the persistent importance of race in this country.
The conservative viewpoint was most notoriously expressed in Chief Justice Roberts’s opinion in Parents Involved in Community Schools v. Seattle School District No. 1, in which he concludes that “[t]he way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Sotomayor responds to the Chief Justice’s simplistic statement with a solution of her own:
“The way to stop discriminating on the basis of race is to speak openly and candidly on the basis of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
While celebrating Sotomayor’s voice, it is important to remember that her outspokenness about her experiences as a Hispanic woman almost derailed her confirmation. While she was a judge, Sotomayor remarked on several occasions, the most famous being during a 2001 speech at Berkeley, that she hoped her experience as a “wise Latina” would enrich her ability to reach better judicial decisions. Republican senators on the Judiciary Committee jumped on this remark, accusing Sotomayor of lacking the capacity to be a “neutral” justice.
According to the senators, neutrality means making decisions that are devoid of any influence by personal experience. The senators’ reaction to Sotomayor’s remarks betrayed a fear of meaningful diversity on the Court. Comedian Stephen Colbert produced a segment on this incident, in which he astutely points out that “neutral” in the senators’ minds was a proxy for whiteness. The only minority on the Court at the time of Sotomayor’s confirmation hearings was Clarence Thomas, who often opines on the issue of race, but does so in a way that aligns with the conservative viewpoint that race-consciousness is impermissible.
While Sotomayor did not command a majority in Schuette, it is important that she has pushed back against the idea betrayed by members of the Senate Judiciary Committee and Justices of the Supreme Court that neutrality equals ignoring race. Sotomayor’s dissent is welcome evidence that the Senate Judiciary Committee’s fears are coming to fruition: Putting an Hispanic woman on the Court will impede attempts to whitewash the reality of racial discrimination in this country.
Georgina Yeomans is a second year law student at Columbia Law School, who likes to avoid studying for exams by writing about the Supreme Court. She grew up in Arlington, VA and attended Wesleyan University, where she acquired her deep institutional skepticism. Between college and law school, Georgina worked in the Civil Rights Division at the Department of Justice.