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.

Forget all that. Look instead at the one contradiction that undermines the whole “political process” doctrine: Sotomayor confuses a political classification — “persons interested in race-sensitive admissions policies” — with a racial classification — “one process for racial minorities and a separate, less burdensome process for everyone else.”

Michigan’s prohibition of racial preferences, in short, not only “inures to the benefit of everyone” (that’s my opinion), but more to the point: whatever burden it imposes is not based on race. It was not designed to — and in fact does not — impose a unique burden or disadvantage on racial minorities, as the “political process doctrine” requires. In fact, as Justice Scalia pointed out in his blistering concurring opinion demolishing  Sotomayor’s dissent, “were a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional.” [Emphasis in original]

The New York Times to the contrary (Editorial, 22 April: “Michigan voters ”chang[ed] the rules of the game in a way that uniquely burdened racial minorities”), the burden of this decision does not fall on a racial class but on everyone “interested in race-sensitive policies.” Underscoring that point, even the ACLU has issued a statement emphasizing that “We’re All Losers After the Supreme Court’s Decision in Schuette,” not just racial minorities, and listed a large number of non-racial examples (university officials, diversiphiles of all hues, the geographically or athletically diverse, etc.).

Since every political decision results in various losers, the “political process doctrine” defended so vociferously by Justices Sotomayor and Ginsburg on the Supreme Court and by liberals on editorial boards and in academia thus falls of its own weight.