(Tom Toles via GoComics.com)
Forget whining about the Notorious RBG, I want a movement to urge Chief Justice Roberts to retire for the good of the nation.
John Cassidy at the New Yorker, “Another Good Day for the Conservative Backlash”:
It’s been almost fifty years since Richard Nixon settled on his “Southern strategy” of mobilizing white voters alienated by civil-rights reforms. Almost the same amount of time has elapsed since the John Olin Foundation and other conservative groups set out to rein in the nation’s courts, and, in particular, the Supreme Court, which had played a key role in expanding the civil-rights agenda…
In some parts of the country, though, and especially in the realm of the law, the backlash is still thriving, and Tuesday was one of its best days yet. In the case of Schuette v. Coalition to Defend Affirmative Action, the Supreme Court, by a 6-2 vote, upheld a 2006 Michigan constitutional amendment that bans consideration of race in admissions to the state’s universities. But the majority decision, written by Justice Anthony Kennedy, went well beyond that. Without saying so explicitly, it appeared to give its approval to ballot initiatives designed to roll back affirmative action in other areas as well, such as hiring employees, awarding contracts—and ending racial segregation. In effect—and, in the case of the Court’s conservatives, surely in intention, too—the justices on the majority suggested that if voters in individual states want to throw out laws designed to counter America’s long history of racial discrimination, that’s fine by them, and perfectly constitutional….
It was left to Justice Sotomayor, in a long and passionate dissent, to point out some of the practical implications of the majority ruling. She cited figures and charts showing how the proportion of minority students at public colleges in Michigan and California has declined sharply since the states’ assault on affirmative action began. “Between 2006 and 2011, the proportion of black freshmen among those enrolled at the University of Michigan declined from 7 percent to 5 percent, even though the proportion of black college-aged persons in Michigan increased from 16 to 19 percent,” Sotomayor wrote. And, evoking one of Justice Roberts’s famous lines from a previous affirmative-action case—he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—Sotomayor added,
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.
Joe Cascarelli at NYMag highlighted a different section of Justice Sotomayor’s dissent:
… “We are fortunate to live in a democratic society,” she began. “But without checks, democratically approved legislation can oppress minority groups. For that reason, 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.”
“The Constitution does not protect racial minorities from political defeat,” Sotomayor wrote. “But neither does it give the majority free rein to erect selective barriers against racial minorities.”
The court, she continued, “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.” …
Finally, Dahlia Lithwick, at Slate, on “What We Talk About When We Talk About Talking About Race“:
… The starting point for the most recent chapter of this knotty and crucial conversation is Chief Justice John Roberts’ famous getting-past-race language in a 2007 case about racial remedies and school busing, in which he wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Roberts used that turn of phrase to both highlight his own philosophy that the Constitution must be color blind, and also to flick at the proposition that the time for overtly racial remedies to historical problems must be put behind us.
Told, in effect, that race has no place in modern constitutional discourse despite the central role it has played in her own life, Justice Sotomayor pushes back on that formulation. Her dissent in Schuette starts from the implicit proposition that Roberts was wrong to close the door in 2007, and is wrong to do so today: “In my colleagues’ view,” she writes, “examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable.” Then she goes on to poke at Roberts with a sharp stick: “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.”…
Sotomayor is not content to belittle Roberts’ formulation that racism will end when we stop helping minorities. She tells him that the act of ignoring pervasive structural racism is an abdication of judicial responsibility: “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.” Then, in what has become the most controversial element of an already controversial dissent, Sotomayor goes on to explain in starkly personal terms why race didn’t stop being an issue on the day Chief Justice Roberts called it on account of a busing program in a case from Seattle. She paints a picture that looks a lot like her own life…
Roberts makes a substantive point in his rebuke of Sotomayor: Racial preferences may lead minority students to suffer shame and self doubt from racial preferences and that it is not “out of touch” to suggest that affirmative action doesn’t remedy race problems. But his deeper, sharper, point is that it is bad for the national dialogue about race for jurists to accuse one another of bad faith and lack of candor. His defensiveness at having someone explaining the limits of his own understanding of racism is palpable. He feels that he has been called out, shamed, and silenced. It is not clear whether or not he understands that his horror at being condescended to, his opinion disregarded, is among the very experiences of racial injustice that Sotomayor is describing….