Schuette v. BAMN and the Contradictions of Justice Sonia Sotomayor
Marxists have long made the case for capitalism's collapse due to its “internal contradictions.” Liberalism may not collapse, but its contemporary contradictions are glaringly, gratingly on display in Justice Sonia Sotomayor’s 58 page dissent, joined by Justice Ruth Bader Ginsburg, in the recently decided Schuette v. BAMN. That’s the case, you will recall, in which the plaintiffs argued that it was unconstitutional for the people of Michigan to amend their state constitution to prohibit discrimination on the basis of race. (If you don’t recall, or you think I exaggerate, see here and here.)
I would like to mention only one of Justice Sotomayor’s contradictions here, but it is a crucial one that so far as I’ve seen no one has mentioned and that undermines the entire “political process” doctrine at the core of the liberals’ argument in Schuette that it is racial discrimination for a state to prohibit racial discrimination.
Here is how Justice Sotomayor presents the mindboggling “political process doctrine” at the beginning of her dissent:
As a result of §26 [the anti-discrimination provision added to the Michigan constitution], there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else.
Citizens can lobby, she continues, for “admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek,” she states, is preferential treatment based on race — or in verbose Sotomayor-speak, “a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity.” Her bottom-line conclusion: “Our precedents do not permit political restructurings that create one process for racial minorities and a separate, less burdensome process for everyone else.”
Forget for now that under our Constitution discrimination based on race is, and should be, fundamentally different from and far worse than discrimination based on athletic ability or legacy status. Forget that race-preference policies may not, in fact, “inure to the benefit” of minorities, as the “political process” doctrine requires. Forget, in fact, that some minorities — especially Asians — suffer under affirmative action. Forget Sonomayor’s silly and much ridiculed attempt to ban the term “affirmative action” in favor of “race-sensitive admissions,” and her accompanying justification that “[s]ome comprehend the term ‘affirmative action’ as connoting intentional preferential treatment based on race alone--for example, the use of a quota system.” Sotomayor herself, with Ginsburg in tow, fails to “comprehend” that her “race-sensitive” claptrap cannot disguise the fact that affirmative action, by whatever name, means many individuals are admitted and others rejected solely because of their race.
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