The Supreme Court may have hammered yet another nail into affirmative action’s coffin with its 6-2 ruling on Tuesday, but Justice Sonia Sotomayor didn’t go quietly. In a fiery and incisive 58-page dissent that was longer than the combined rulings and responses of all her other colleagues, Sotomayor took her colleagues to task over their eagerness to part ways with 30-year-old legal precedents; their willful ignorance about the realities of race and racism; and their refusal to acknowledge that race continues to be a central force shaping the lives and opportunities of people in the U.S.
Sotomayor, who was joined by Justice Ruth Bader Ginsburg, contextualizes Schuette within a century-long history by including a brief history of the myriad ways states and localities have denied people of color the right to vote, to go to school, and to and access to the political process over the years. She starts at the Fifteenth Amendment, which was ratified after the Civil War, and counts all the ways the Supreme Court has intervened in this ugly history to protect people of color’s access the political process. Her history lesson serves as a kind of shaming of the current Court, which in Schuette departed from established precedent and, she argues, its duties.
There are plenty of gems in her dissent, including a direct rebuke to Chief Justice John Roberts, who famously wrote in a 2006 opinion: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." On Tuesday, Sotomayor responded: "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."
But perhaps my favorite passage from the opinion is when Justice Sotomayor steps away from the legal theory to explain in plain English exactly how race is lived for so many people of color in the U.S.
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."
Read Sotomayor’s dissent in full (PDF).