Justice Sonia Sotomayor this week took the unusual step of reading her dissent in a case involving state-sponsored affirmative action in Michigan. In doing so, she showed herself not only petulant to be on the losing side in a 6-2 decision, but unable to divorce her legal reasoning from her own sense of racial grievance. It was an embarrassing but predictable performance.
In 2009, I was one of a handful of witnesses who testified against Sotomayor's confirmation before the Senate Judiciary Committee. I did so with sadness, because there is much to admire in Sotomayor's personal history.
Raised by a single mom after her alcoholic father's death when she was 9, Sotomayor overcame poverty and poor health (she had juvenile diabetes) to graduate summa cum laude from Princeton University and excel at Yale Law School. But rather than ascribe her own success to hard work -- she quickly realized at Princeton that her English and writing were deficient and began reading the classics and studying proper grammar to independently improve her skills -- she attributes virtually all her accomplishments to affirmative action. How sad.
Her myopia was clearly on display in her long, vituperative dissent in the Michigan case. At issue in Scheutte v. Coalition to Defend Affirmative Action was whether voters in the state had a right to ban racial, ethnic or gender preferences in public college admissions, state contracting and state employment through the passage of a ballot initiative amending the state constitution.
In Sotomayor's view, policies that apply the same standards to all individuals regardless of race place an unfair burden on minorities. "The Constitution does not protect racial minorities from political defeat," she wrote, joined by Justice Ruth Bader Ginsburg. "But neither does it give the majority free rein to erect selective barriers against racial minorities."
So what exactly were those "selective barriers" in the Michigan case? Sotomayor implies that the election process in a majority white state makes it difficult for minorities to prevail. But the facts in the Michigan election that banned racial preferences in 2006 suggest otherwise.
The deck was stacked against those who proposed to ban racial preferences, not the other way around. Opponents of the measure outspent proponents by 3-1. Virtually every establishment group in the state, including the Republican Party, opposed the measure, from business groups to unions to the clergy. Opponents' ads featured cross burnings and other highly charged symbols of racism to taint the initiative. Still, voters in the state approved the measure with almost 60 percent of the vote.
A handful of other states have also banned preferences through ballot initiatives. But Colorado voters defeated a measure with identical wording to Michigan's ban in 2008. Sotomayor seems unaware of this precedent -- or perhaps she just chose to ignore it. Maybe that's because Colorado's rejection of a ban on racial preferences doesn't fit in with her racial-grievance model. Both Michigan and California, the two most prominent states that have banned racial preferences through ballot measures, have larger black populations than Colorado. Indeed, California's is 60 percent non-white. Yet whiter Colorado voted against banning preferences for racial minorities, which contradicts Sotomayor's assumptions.
Sotomayor's dissent is peppered with highly selective research purporting to show the damage done to blacks and Hispanics when states pass bans on racial preferences. She includes charts showing a decline in admission to the University of Michigan after the passage of the ban on racial preferences, as well as declines in admissions to UCLA after a similar ban passed in California. But she dismisses evidence that despite the drop in admissions at the flagship schools in California, for example, overall enrollment of black and Hispanic students at other University of California campuses has gone up after voters banned preferences. More importantly, students admitted to schools whose admission standards they could meet without racial preferences were far more likely to graduate.
The Supreme Court's decision in Schuette doesn't resolve the contentious issue of affirmative action, but it does uphold the right of the people to decide the issue directly rather than relying on university bureaucrats.
Sotomayor said during her confirmation hearings that a statement she had made earlier that "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life" was simply "a rhetorical flourish that fell flat." Unfortunately, her dissent in Shchuette suggests she has failed to learn that lesson.