OCALA, Fla., April 24, 2014 — Is racial discrimination in public affairs ever a good thing? Even the Supreme Court can’t reach a unanimous conclusion.
On Tuesday, our nation’s highest judicial body ruled in favor of Michigan in a case which pitted the state’s voter-approved affirmative action ban against a jumble of special interest groups. The decision was 6 to 2, with Associate Justice Elena Kagan abstaining.
In the plurality were Assosciate Justices Anthony Kennedy and Samuel Alito, along with Chief Justice John Roberts. Concurring with this reliably right-of-center bloc were its usual fellow travelers — Antonin Scalia and Clarence Thomas — and one progressive voice: Stephen Breyer.
The justice who captured the public’s attention was none of these, however. Sonia Sotomayor, in a dissent accompanied by Ruth Bader Ginsburg, made no bones about her perspective.
Technically, the matter at hand was whether or not Michigan ran afoul of the Fourteenth Amendment in its abolition of affirmative action. The subject quickly ran over into America’s continuous debate over race.
Sotomayor, the Court’s only minority member, wrote that she “cannot ignore the unfortunate outcome of today’s decision: Short of amending the State Constitution, a Herculean task, racial minorities in Michigan are deprived of even an opportunity to convince Michigan’s public colleges and universities to consider race in their admissions plans when other attempts to achieve racial diversity have proved unworkable, and those institutions are hobbled in their pursuit of a diverse student body.”
She then specified that “(t)he Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities. The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success. Today, the Court discards that doctrine without good reason.”
She later remarked that “(t)oday’s decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.”
Kennedy, on the other hand, claimed that “(w)hat is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails, first, the definition of racial categories and, second, the grant of favored status to persons in some racial categories and not others.
“The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it.
“Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs designed to increase diversity—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism.
“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters….Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor.
“But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.”
So, who is right and who is wrong? Legally-ordained racial discrimination, even if done to achieve a supposedly positive outcome, is discrimination nonetheless. No matter how one should choose to phrase an affirmative action policy, it is nothing less than the flip-side of Jim Crow.
All institutions open to the public ought to accept people on the basis of merit and nothing more. This is the true nature of racial equality; when race does not matter at all.
It is good to see that the Supreme Court finally came around to the side of reason.