Supremes’ Spat Over Affirmative Action

For all the controversial issues decided by the ideologically divided Supreme Court, the justices insist that their relationships with one another are collegial and friendly. You wouldn’t know it, however, by reading the opinions in this week’s big affirmative action ruling. In fact, a close look at the opinions suggests something of a spat between Chief Justice John Roberts and Justice Sonia Sotomayor—at least when it comes to questions of race.

First a bit of background. In a 2007 case, the Chief Justice expressed his view that affirmative action was keeping America back from realizing the Constitution’s promise of equality before the law. In what’s become an often-repeated line, Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Affirmative action, in Roberts’s view, was just another form of discrimination.

Sotomayor wasn’t on the High Court when that case was decided, but in this week’s decision she let her view of Roberts’s statement be known. In her 58-page dissent from the majority’s decision to uphold Michigan’s ban on race-based affirmative action in higher education, Sotomayor took dead aim at the Chief Justice. “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 didn’t stop there. The justices, she wrote, “ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.” Michigan’s law, and a similar law in California, has hurt racial minorities by reducing their access to some of the top public schools in the nation. By ignoring this impact, the majority’s decision “reveals how little my colleagues understand about the reality of race in America.” The justices, including the Chief Justice, were “out of touch with reality.” The majority’s view “works harm,” she wrote, “by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”

Ouch.

Now it is hardly rare for justices to write scathing dissents. Justice Antonin Scalia has made a career of it. Usually the justices attacked in such dissents can be counted on to brush it off. Not this time. Roberts went out of his way to write an unusual, one-page opinion solely to respond to Sotomayor’s charges.

“It is not ‘out of touch with reality’ to conclude that racial preferences may themselves have the debilitating effect of reinforcing” doubts about the qualifications of racial minorities benefited by such programs, he responded. “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. 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.”

Touche.

It’s hard not to see this disagreement as somewhat personal. Were this a debate over some fine point of admiralty law, we could chalk this up to passionate but conflicting views of legal doctrine. Questions of racial identity tend to be a bit touchier. This is especially so given that Sotomayor has been frank about her past as a recipient of affirmative action. In her memoir, My Beloved World, she discusses how important those policies were to opening up avenues of success that eluded previous Latinos. Taking on affirmative action is, in some ways, taking on what Sotomayor believes to be a key to her own success.

Perhaps that’s why she reacted with such passion in this week’s decision—and why the spat between her and the Chief Justice on questions of race emerged into the spotlight this week.