Supreme Court Justice Sonia Sotomayor disagreed so strongly with the Court's affirmative action-blasting decision yesterday that she broke from standard procedure and read a large portion of her dissent (which I'm legally required to refer to as "scathing") from the bench. Conservatives responded to her response by calling the first Latina Supreme Court Justice "legally illiterate" and "emotional."
For background, and in case you weren't paying attention or decided yesterday at the end of the day that you just couldn't even: Yesterday, the Supreme Court ruled that the state of Michigan's ban on use of affirmative action as a factor in college admissions and state employment could stand, thus, in the eyes of some, threatening the existence of affirmative action policies across the country. At issue in the case wasn't whether affirmative action was itself a legal policy; rather, it specifically upheld the right of Michigan voters to ban affirmative action via popular vote. Which is a sort of silly way to go about it, when you think about it, because the whole point of affirmative action is to prevent groups with systemic advantages from monopolizing all of the opportunities for advancement, thus shutting out historically disenfranchised groups who are already starting the race fifty yards back. It's sort of the legal equivalent of ruling that it's okay for Michigan voters to pass an anti-People Named Jerry law. As a minority, people named Jerry will never have the votes to stave off such legislation. But, you know, the people have spoken. Suck it, Jerry.
The ruling followed the standard old white guy logic that the best way to fight racism is to pretend that race doesn't exist. Sotomayor did not dig it. In her dissent, she wrote (and read),
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.
White dudes were displeased. Over at TPM, Sahil Kapur gathered the various ways in which the white dudes were displeased, and helpfully compiled them.
Here's some white dudes over at the National Review, discounting the life experience of a non-white woman who has admittedly benefitted from affirmative action.
Her opinion is legally illiterate and logically indefensible, and the still-young career of this self-described "wise Latina" on the Supreme Court already offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law. Justice Sotomayor has revealed herself as a naked and bare-knuckled political activist with barely even a pretense of attending to the law, and the years she has left to subvert the law will be a generation-long reminder of the violence the Obama administration has done to our constitutional order.
Here's a white dude from The Weekly Standard appearing on Fox News to explain how Sotomayor was probably just feelin' emotional.
This was a decision written by somebody who was writing about emotion. It was President Obama's 'empathy standard' — that's what he was looking for when he nominated her, that's what I think he got.
And Justice Scalia, a white dude whose Italian heritage would have subjected his ancestors to second class treatment a century ago, argues that ever since forever, the constitution has been color blind and Sotomayor can take her first hand experiences of being a non white non man and pipe down.
As Justice Harlan observed over a century ago, '[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.' The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way," Scalia wrote. In an accompanying footnote, he referenced Sotomayor's opinion and added, "And doubly shameful to equate 'the majority' behind [the Michigan ballot initiative] with 'the majority' responsible for Jim Crow.
Get that, America? The People have spoken. Of course, when I say "The People," I mean "the white dudes."
There are ways to disagree with Justice Sotomayor without appealing to the boring sexist tropes so appealing to her critics. And there are ways to be a white guy with opinions on how to best confront institutional racism. But calling the first Latina Justice on the Supreme Court "emotional" when you disagree with her is not it.