Ethics Dunce: Justice Sonia Sotamayor

We shouldn't need one of these at the Supreme Court.

We shouldn’t need one of these at the Supreme Court.

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.



Sources: Althouse 1, 2, WSJ,

13 thoughts on “Ethics Dunce: Justice Sonia Sotamayor

  1. “… affirmative action is just another form of discrimination based on race, which the Constitution forbids”.

    Does it forbid that, as generally as that, or does it merely forbid that to the U.S. federal government and to the various extensions and emanations that broader construction has swept up under that heading? The reason I put it that way is, many organisations and institutions aren’t covered by even that sort of broader construction.

  2. 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.

    The Supreme Court has upheld the use of affirmative action as a remedy for past federally unlawful racial discrimination. See e.g. United States v. Paradise , 480 U.S. 149 (1987) Such a remedy must, of course, satisfy strict scrutiny. Thus, if a state university in Michigan engaged in federally unlawful discrimination against, for example, Ukrainians, pro-Ukrainian affirmative action may be a required remedy, depending on specific facts to the case. (Note that Paradise was not addressed in any of the opinions, so presumably it is still good law.)

    Justice Sotomayor mentions that establishing a diverse student body is a compelling government interest that could justify race-based affirmative action. However, one prong of strict scrutiny- least restrictive means- can not be satisfied in today’s society, ironically because of lingering effects of racial discrimination.

    Affirmative action based upon socioeconomic status would work about as well as race-based affirmative action in ensuring diversity. In fact, it would also remedy discrimination by third parties. (Paradise only dealt with affirmative action administered by the very party that had engaged in the unlawful discrimination.) Because this race-neutral alternative can accomplish this same goal, race-based affirmative action can not be justified if the only purpose is to obtain a diverse student body.

    • The Constitution still forbids it, and if O’Connor hadn’t authored a weasel-worded opinion to tilt a 5-4 decision, it would have been outlawed a decade ago. AA was always unconstitutional. It wasn’t the first time SCOTUS rationalized a straight up violation in keeping with the national mood.. Ask the Japanese Americans.

      • Have you ever read Justice Thomas’s concurrence in Fisher v. University of Texas?


        In our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society. The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks. See, e.g., Brief for Respondents in Sweatt 96 (“[A] very large group of Northern Negroes [comes] South to attend separate colleges, suggesting that the Negro does not secure as well-rounded a college life at a mixed college, and that the separate college offers him positive advantages; that there is a more normal social life for the Negro in a separate college; that there is a greater opportunity for full participation and for the development of leadership; that the Negro is inwardly more ‘secure’ at a college of his own people”); Brief for Appellees in Davis 25–26 (“The Negro child gets an opportunity to participate in segregated schools that I have never seen accorded to him in non-segregated schools. He is important, he holds offices, he is accepted by his fellows, he is on athletic teams, he has a full place there”. This argument was unavailing. It is irrelevant under the Fourteenth Amendment whether segregated or mixed schools produce better leaders. Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders. Likewise, the University’s racial discrimination cannot be justified on the ground that it will produce better leaders.

        The University also asserts that student body diversity improves interracial relations. In this argument, too, the University repeats arguments once marshaled in support of segregation. See, e.g., Brief for Appellees in Davis 17 (“Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races”); id., at 25 (“If segregation be stricken down, the general welfare will be definitely harmed . . . there would be more friction developed”; Brief for Respondents in Sweatt 93 (“Texas has had no serious breaches of the peace in recent years in connection with its schools. The separation of the races has kept the conflicts at a minimum”); id., at 97–98 (“The legislative acts are based not only on the belief that it is the best way to provide education for both races, and the knowledge that separate schools are necessary to keep public support for the public schools, but upon the necessity to maintain the public peace, harmony, and welfare”); Brief for Appellees in Briggs 32 (“The southern Negro, by and large, does not want an end to segregation in itself any more than does the southern white man. The Negro in the South knows that discriminations, and worse, can and would multiply in such event” (internal quotation marks omitted)). We flatly rejected this line of arguments in McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637 (1950), where we held that segregation would be unconstitutional even if white students never tolerated blacks. Id., at 641 (“It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar”). It is, thus, entirely irrelevant whether the University’s racial discrimination increases or decreases tolerance.

  3. Justice is supposed to be blind. If she were truly wise she wouldn’t be so caught up in feelings and justifications. In a sense naming things makes them real, if you can just rename them and wipe out their meaning there is no reality and no justice.

    • Wyo, if she was truly wise, she would realize that this case was not directly about AA, but rather whether the electorate of a State has the right to pass a law banning the enforcement of an unconstitutional federal regulation.

  4. Sotomayor is a leftist pundit at heart, pure and simple. At the heart of this movement is the tactic of separating people by this category or that as a means of playing them off against one another for the purpose of acquiring power for a political elite. That’s why race, class and sex are always a central theme in just about anything they do. It’s also why this woman is on the Court in the first place, despite her low level of qualifications. She is to facilitate the leftist agenda in achieving its hundred year quest to utterly dominate American life for all time. Putting juristic snake oil peddlers on as many benches as possible is vital in that effort.

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