Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process. [...] Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. [...]In the last few weeks, there has been a discussion of race matters (and whether race still matters that much) sparked in large part by Jonathan Chait's lament that:
And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
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. [Emphasis supplied.]
Race has saturated everything as perhaps never before. Hardly a day goes by without a volley and counter-volley of accusations of racial insensitivity and racial hypersensitivity. And even when the red and blue tribes are not waging their endless war of mutual victimization, the subject of race courses through everything else[.]Many of us engaged in this discussion but I think Justice Sotomayor sort of swept that discussion away, placing it all in proper perspective in terms of the workings of our highest court and its real impact on real lives. It seems a clincher that we must realize that race matters, and must be discussed in order to address many, if not most, of the pressing problems faced by our country.
I'll discuss this all on the other side.
The issue in Schuette did not directly implicate the constitutionality of race conscious government policies or affirmative action in higher education admissions. Instead, it turned on a principle known as the political process doctrine and the contours of that idea as enunciated in the 1982 case State of Washington v. Seattle School District No. 1. In Seattle, the Supreme Court stated that:
We are presented here with an extraordinary question: whether an elected local school board may use the Fourteenth Amendment to defend its program of busing for integration from attack by the State. [...]Finding that the Washington state Initiative 350 improperly distorted governmental processes in ways prohibited by the equal protection clause, the Seattle Court stated:
[A] statewide initiative [was] designed to terminate the use of mandatory busing for purposes of racial integration. This proposal, known as Initiative 350, provided that "no school board . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student's place of residence . . . and which offers the course of study pursued by such student. . . ." See Wash.Rev.Code § 28A.26.010 (1981). [...] Initiative 350 passed by a substantial margin, drawing almost 66% of the vote statewide.
[...] The Equal Protection Clause of the Fourteenth Amendment guarantees racial minorities the right to full participation in the political life of the community. It is beyond dispute, of course, that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner. See White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927). But the Fourteenth Amendment also reaches "a political structure that treats all individuals as equals," Mobile v. Bolden, 446 U.S. 55, 84, 100 S.Ct. 1490, 1509, 64 L.Ed.2d 47 (1980) (STEVENS, J., concurring in judgment), yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.
when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process. State action of this kind, the Court said, "places special burdens on racial minorities within the governmental process," id., at 391, 89 S.Ct., at 560 (emphasis added), thereby "making it more difficult for certain racial and religious minorities than for other members of the community to achieve legislation that is in their interest." Id., at 395, 89 S.Ct., at 563 (emphasis added) (Harlan, J., concurring). Such a structuring of the political process, the Court said, was "no more permissible than is denying members of a racial minority the vote, on an equal basis with others. [...] "we find the principle of those cases dispositive of the issue here. In our view, Initiative 350 must fall because it does "not attempt to allocate governmental power on the basis of any general principle." Hunter v. Erickson, 393 U.S., at 395, 89 S.Ct., at 563 (Harlan, J., concurring). Instead, it uses the racial nature of an issue to define the governmental decisionmaking structure, and thus imposes substantial and unique burdens on racial minorities.It is in reliance on this that Justice Sotomayor would have similarly found the Michigan referendum that amended the state constitution to prohibit affirmative action in higher education violative of the equal protection clause. This is certainly a reasonable position. Myself, I am more inclined to take the view offered by Justice Stephen Breyer's concurring opinion:
[C]onsidered conceptually, the [political process] doctrine set forth in Hunter and Seattle does not easily fit this case. In those cases minorities had participated in the political process and they had won. The majority’s subsequent reordering of the political process repealed the minority’s successes and made it more difficult for the minority to succeed in the future. The majority thereby diminished the minority’s ability to participate meaningfully in the electoral process. But one cannot as easily characterize the movement of the decisionmaking mechanism at issue here—from an administrative process to an electoral process—as diminishing the minority’s ability to participate meaningfully in the political process. There is no prior electoral process in which the minority participated.It is a close case. My slight lean is to Justice Breyer's view. But what Justices Breyer and Sotomayor share is an understanding that race matters in this analysis.
[. . .] The principle that underlies Hunter and Seattle runs up against a competing principle [...]. This competing principle favors decisionmaking though the democratic process. Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.
Not so the plurality opinion or (in a very open fashion) the concurrence of Justice Antonin Scalia. The plurality (made up of Chief Justice John Roberts, Justice Samuel Alito and the author Justice Anthony Kennedy) protest loudly that the case is not about race while Justice Scalia vehemently attacks the notion that any government policy should ever address race.
In many ways, Justice Sotomayor is taking her opportunity to "dissent" from Chief Justice Roberts' egregious opinion in Parents Involved, which struck down a VOLUNTARY Seattle school desegregation plan in which Roberts wrote these infamous words:
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.The Chief Justice's offensive shibboleth drew this dry response in dissent from Justice Stevens:
There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955) . The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” Ante, at 40. This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”1 The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.2 In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.It was truly infuriating. And Justice Sotomayor, reminded again by the plurality opinion of Chief Justice Roberts' insidious role as the leading light in the "race does not matter anymore" charge, replies:
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.The rebuke seems to have cut the Chief Justice to the bone; he took umbrage at what he deemed a personal insult. He responded:
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.Of course Justice Sotomayor did no such thing (although she may think it, as I openly do.)
Chief Justice Roberts has been called many things in his life. But there is something about being told that he is blind, clueless, and also silencing that affects him viscerally. His entire two-page concurrence in Schuette (he did not need to write anything, Anthony Kennedy wrote the controlling opinion) is a rebuke to Sotomayor; not on matters of doctrine, but on good taste and decorum in public discourse over race. It’s not just that he doesn’t like what she is saying. He doesn’t like how she’s saying it. [...]And not just at the Court, as Jon Chait demonstrated these past weeks. But never have I been prouder of Justice Sotomayor than in this moment. She wrote and said what needed to be said.
Maybe the outcry at Sotomayor’s reflections on why race and racism still matter is merely a function of her tone. Nobody likes to be told they are out of touch with reality, even if they work in a palace and surround themselves with silent, sock-footed clerks. Or maybe it was different when Marshall lectured them, or browbeat them into changing language in written opinions because he was a man. Or maybe they endured it because he was funny. Or maybe, and I suspect this is it, they could hear him because he was a part of the era that the majority of the current court wants to relegate to history: Marshall argued Brown. But Brown solved racism! Because, seemingly, and by popular acclaim, racism itself is over.
Nobody likes to be lectured about race, and nobody likes to hear they don’t get it. Most of us have likely been on both ends of that conversation. But, at some level, the inability of certain members of the court to understand—or to be willing to listen to someone explain to them—that race continues to play a role in how Americans pursue opportunity, how they are received by others, and how they feel marginalized—is grimly ironic in the context of a case about affirmative action, a policy that was designed, by some measures, to compensate for these experiential inequities. [...]
The fight over how the court gets to talk about race—who gets to announce that the time for open talk is over, and who gets to decide that a call for honesty is “shameful?”—well, that fissure may endure at the court for a very long time. [Emphasis supplied.]
It should all give us courage to continue the struggle, the never ending struggle to eradicate racism, discrimination and bigotry wherever we find it. Even, indeed, especially in our governments and institutions.