Last week, I wrote about Justice Kennedy’s deeply troubling opinion in Schuette v. BAMN, which discarded fundamental equal protection principles in deciding that majorities are free to enact laws that politically marginalize minorities by permanently and categorically forbidding consideration of minority-protective measures such as race-conscious admissions policies.
[I borrow the term “minority-protective” from Reva Siegel’s 2013 article, Equality Divided, and understand it to refer to laws that seek to overcome persistent, structural inequality by making sure that important opportunities—educational, economic, and political—are open to all.]
Reading Justice Kennedy’s opinion in Schuette is like looking into a fun house mirror—everything is distorted and shifting; up is down; black is white; protection is discrimination; and discrimination is protection. History has ended, and race has ceased to “matter”—a fact unequivocally indicated by the decision of a majority of Michigan voters to forbid its discussion.
By contrast, reading Justice Sotomayor’s thoughtful dissenting opinion feels the way reading a major civil rights decision should feel—not shirking the mantle of protecting minorities, but instead embracing the Court’s special role in carefully scrutinizing and checking majoritarian impulses. Unlike Justice Kennedy’s opinion, which reads like a slapped-together thought project, Justice Sotomayor’s dissent reads like a majority—it is careful, thorough, and based in principle as well as precedent.
There is much to praise about Justice Sotomayor’s dissent—for example, the way she calls out the plurality for failing to articulate a limiting principle for majority rule, or reminds us that the Equal Protection Clause protects against more than just intentional discrimination.
But I want to focus on two other aspects of Sotomayor’s valiant effort at resistance: remembering history and, relatedly, insisting that race matters.
Remembering History and “Mattering” Race
One of the central themes of Toni Morrison’s masterpiece, Beloved, is the idea that the ghost of slavery remains with us. This ghost demands that we remember it and tend to the psychic wounds it inflicts. Otherwise everything will go horribly wrong. There will be violence, resentment, and fear in all quarters.
In Schuette, it is Justice Sotomayor who is tasked with remembering history. Justice Kennedy sees racism and, indeed, race itself, as “over”—something that “we” struggled with in the 60s, 70s, and maybe even 80s, but that is now at least diffuse and aberrant, if not absent altogether.
But Justice Sotomayor reminds us that,
For much if its history, our Nation has denied to many of its citizens the right to participate meaningfully and equally in its politics. This is a history we strive to put behind us. But it is a history that still informs the society we live in, and so it is one we must address with candor.
Justice Sotomayor then embarks on a detailed description of the various efforts to politically marginalize racial minorities over the decades, with the precise mechanism of exclusion changing over time from more overt to more covert forms. Further, Sotomayor describes how majoritarian efforts to exclude minorities triggered protective judicial intervention, which in turn triggered more sophisticated forms of discrimination, requiring more astute analysis by the Court.
It is this history that explains the very existence of the political process doctrine and that demands sensitivity to race-based state action today. Indeed, it is the lengthy history of racial discrimination in this country that requires the Court to apply strict scrutiny to laws that rely on racial classifications—to carefully examine whether they conflict with the principles of equal protection, even if the form of discrimination is more subtle.
Justice Sotomayor then links this history to race identity, powerfully proclaiming, “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 inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. . . . And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away.
The only way Justice Kennedy could avoid applying strict scrutiny in Schuette was to conclude that a law that forbids discussion of race is somehow not “about” race. This is wishful thinking to the point of delusion.
This is not a battle over legal principles; this is a battle over social reality—particularly, the lived experience of race. Justice Sotomayor’s dissent in Schuette refutes—at the highest level—the notion that there is consensus about race and racism being “over.” While her opinion did not carry the day, it provokes and continues the dialogue of how and why race matters, and who gets to participate in that conversation.
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.