Of course, I am referencing the Michigan case, Schuette v. Coalition to Defendant Affirmative Action (By Any Means Necessary)
NRO's Bench Memos is my go-to place for all things legal - and Carrie Severino did not let me down. Read it all, but here is a good summary;
Justice Kennedy’s opinion is very encouraging, and is well worth reading. As an initial matter, Justice Kennedy limits the political process doctrine, and argues that if the Sixth Circuit’s conception of the doctrine were adopted, it would require the courts to decide “which political policies serve the ‘interest’ of a group defined in racial terms.” As Justice Kennedy correctly points out, it is absurd to think that all individuals of the same race think alike, so attempting to go around categorizing individuals by race would be “inherently suspect.” Such an effort would impose no end to the courts’ constitutional legitimacy problems, not least because “Racial division would be validated, not discouraged,” if the Sixth Circuit’s reasoning were upheld.Justice Sotomayor gives everyone a multipurpose assist to understanding the fight ahead to get to a more fair and just society - but not how she thinks.
Perhaps the most inspiring sentence in Justice Kennedy’s opinion is on page 15 of the slip opinion: “The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” That may seem like Con Law I material, but it needs to be said. Often.
And then: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
Her dissent wraps up all that the racialist left has to argue; emotion, grevience, retrograde theory - and more importantly - their self-centered desire for society to codify and allow their desire to get revenge on the dead by punishing the yet unborn.
They are, at their core, sectarian and slightly flavored with a self-defined desire for race-based discrimination motived by hate; one of the most primitive and base emotions.
Don't get me wrong, good people can disagree, but some many think that it is OK to punish children for the sins of their parents for seven generations. They are wrong ... but some have a more sinister drive to their ideas. The more emotion they show, more often than not - the baser their drive.
I think Sotomayor showed a little of the later. Via Robert Barnes at WaPo;
It is a 58-page dissent, longer than the combined efforts of four other justices who wrote. The court’s first Latina justice directly took on Roberts’s view that the nation’s continued reliance on racial classifications hinders rather than promotes the goal of a color-blind society.Yep, she has issues - and I would offer that they are way too self-referential.
Sotomayor noted Roberts’s famous statement in a 2007 opinion that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Too simplistic, she said.
“This refusal to accept the stark reality that race matters is regrettable,” Sotomayor wrote. “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.”
She added: “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.”
Roberts responded with a short, sharp statement of his own.
“To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality,” Roberts wrote.
“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.”
“Race matters,” she wrote, to the minority teenager who sees “others tense up as he passes;” to the young person addressed in a foreign language although she grew up in this country; to the young woman who is asked “No, where are you really from?”
“Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here,’ ” Sotomayor wrote.
Roberts repeated Sotomayor’s words before coming to the opposite conclusion.
“It is not ‘out of touch with reality’ to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and — if so — that the preferences do more harm than good,” he responded.
The debate provides a remarkable view of the court’s ideological split. But it is unlikely to change many minds — not of those who support what is a step-by-step effort by Roberts to remove racial classifications, or of those who support Sotomayor’s defense of what is clearly a minority view on the court.
Her mind is stuck in the 1970s. The kids who are trying to get in to the University of Michigan or just entering the workforce were born in the second Clinton Administration. Their formative years were with a mixed race President, etc. etc. etc.
The America writ large that seems to haunt Justice Sotomayor exists only in her mind.
As the nation continues to turn towards fairness and looking at citizens as individuals, not self-identified DNA sub-groups - those who have such an emotional investment in sectarianism like Sotomayor will lash out more. You will see more emotion, less reason. More personal attacks, less a desire for unity.
Gird your loins, grow thick skin, and put on your big boy pants - join the fight, it is going to be a long, hard, slog.
Getting back to Severino,
But Michigan was trying to prevent discrimination or preferences based on sex, color, ethnicity, and national origin, not just race. And Michigan was trying to prevent discrimination and preferences in public hiring and public contracting, not just education. She acknowledges the breadth of Michigan’s effort to create neutrality, but her opinion is quite a disappointment on this score. Although the Michigan constitution demands strict neutrality in hiring, firing, admissions, and contracting, Sotomayor thinks neutrality itself is constitutionally suspect.