Supporters of Justice Sotamayor’s embarrassingly anti-judicial dissent in Schuette v. Coalition to Defend Affirmative, Integration and Immigration and Fight for Equality by Any Means Necessary betray their ignorance of law and worse, their endorsement of double-talk from the one place in our government where it should never be tolerated, the Supreme Court.
It’s not even debatable.
“The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race,” she wrote, “and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” “Speak openly and candidly…”
How does Sotamayor speak openly and candidly? Like this, from footnote 2 of her dissent…
“Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.” Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone—for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a “points” system, whereby an institution accords a fixed numerical advantage to an applicant because of her race; or the admission of otherwise unqualified students to an institution solely on account of their race. None of this is an accurate description of the practices that public universities are permitted to adopt after this Court’s decision in Grutter v. Bollinger, 539 U. S. 306 (2003) . There, we instructed that institutions of higher education could consider race in admissions in only a very limited way in an effort to create a diverse student body. To comport with Grutter, colleges and universities must use race flexibly, id., at 334, and must not maintain a quota, ibid. And even this limited sensitivity to race must be limited in time, id., at 341–343, and must be employed only after “serious, good faith consideration of workable race-neutral alternatives,” id., at 339. Grutter-compliant admissions plans, like the ones in place at Michigan’s institutions, are thus a far cry from affirmative action plans that confer preferential treatment intentionally and solely on the basis of race.”
Oh, look! A new euphemism, which is how partisans, activists, advocates and pols muddy public policy discussions by using carefully crafted words and phrases designed to mislead the public and hide what is going on!
And coming from none other than a member of the Supreme Court, a judge, whose job and duty it is to use precision of language to accomplish exactly the opposite-–to clarify beyond any confusion, for that is how laws must be—clear–if they are to be followed, obeyed and enforced. Affirmative action needs a new euphemism, it seems, because the public is finally on to what it really means. It is no longer seen as a positive, “affirmative” policy to take “action” in mitigation of race prejudice, but a cynical use of racial discrimination in a destructive and divisive racial spoils system.
Sotamayor justifies her disingenuous euphemism for a euphemism by setting up a straw man argument: “Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone.” Race alone? You mean some idiots think that colleges just pick random minority high school grads out of a hat and race alone is sufficient for them to get slots in the next entering class, regardless of grades, test scores and extra-curricular achievements? Nobody believes that, and Sotomayor knows it nobody believes it. For decades, affirmative action has meant a “thumb on the scales,” a policy that gave minority students an edge, based on race, that would carry them past and over better qualified white students or those at least as capable. Like busing, it could be justified at one time as a transitional program to deal with a crisis, unacceptable racial stratification in professional fields and economic class as a legacy of slavery and Jim Crow. But the policy was always an anomalous betrayal of core American values and principles, racial discrimination to combat racial discrimination. As such, it needed to be jettisoned as soon as significant progress was made, and though it threatens the livelihood of some civil rights entrepreneurs to admit it, there is a black middle class in the U.S. now, and policies favoring one race over another now do more damage than good. Thus Sotamayor wants to hide the ball, and make a divisive policy sound friendly, innocuous, mild and new. “Race-sensitive”! That doesn’t even suggest action, just feelings—and who can be threatened or offended by mere feelings? This is candor and openness? No, it is hypocrisy and deceit.
Of course, all racial prejudice is “race-sensitive.” Employers who are racist “consider race in only a very limited way” as they decide that qualified black applicants for jobs just won’t fit in, sorry. Sotamayor’ attempt at double-talk and obfuscation attempts to disguise what the problem is: affirmative action is just another form of discrimination based on race, which the Constitution forbids.
As a lawyer, I don’t call a Supreme Court justice an ethics dunce lightly; I have never done so before, and I never dreamed that it would be necessary or appropriate to do so. Justice Sotamayor’s dissent, however, by advocating candor and openness while intentionally obscuring the issues by injecting the intrinsically deceitful device of a euphemism into the debate, represents a breach of the American public’s trust. She should know better.