Despite Justice Sotomayor's Passionate Dissent, Right-wing Supreme Court Turns Another Blind Eye to Racism

On Tuesday, U.S. Supreme Court Justice Sonia Sotomayor did not sit idly by as a majority of the men on the court turned yet another blind eye to the ugly realities of how race distorts the lives of Americans as they upheld a Michigan ballot measure banning race-conscious university admissions.

Speaking from the bench and writing the longest dissent of her tenure on the Court, she chided her conservative colleagues for their naivete about race—where they pretend that prejudice will disappear if they say so—and boldly told them, “race matters.”

“Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process,” she wrote, citing voting rights. “Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities,” she said, pointing to employment, poverty, health care, housing, consumer transactions and education.

“And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away,” she continued. “Race matters to a young man’s view of society when he spends his teenage years watching 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.”

In sum, Sotomayor said that the U.S. Constitution “does not guarantee minority groups guaranteed outcomes [or] victory in the political process,” but that “it does guarantee them meaningful and equal access to the process. It guarantees that the majority may not win by stacking the political process against minority groups permanently.”

Tragically, Sotomayor’s fair-minded view of race and participation is not the majority view on the Supreme Court. If anything, when we look at where the Court has decided to expand “access” to supposedly democratic public processes like elections, what we find is a persistent and ongoing institutional bias toward the wealthiest Americans—who overwhelmingly also are white.

Consider the Court’s notion of access in the context of their latest ruling deregulating campaign finance law, McCutcheon v. FEC. There, the right-wing majority threw out a limit on how much money one person could give to a political party. Writing six-figure checks wasn’t corrupting and didn’t guarantee outcomes, they said, such as lawmakers passing, blocking or modifying legislation or regulations. Access to lawmakers, at top-dollar fundraisers or lobbyists making their rounds at the Capitol, was fine, they said.

But not so with university admissions, in this most recent case from Michigan. And not so when it comes to the formula on the 1960s-era Voting Rights Act that allowed the Justice Department to veto state changes to laws if they are racially discriminatory.

Decisions like these are the basis for institutional barriers that keep hard-working, honest people down. You often hear that “good people” run for political office trying to do the best that they can in a corrupt and bad system. The Supreme Court is one of few power centers in the country that can rebalance and address historic injustices. The other is Congress, of course, and the executive branch.

Finding that balance and protecting minority opinion against mob rule is what the courts and judges are supposed to do—it’s the heart of the law. It’s the basis for a constitutional system of checks and balances. And it’s nowhere to be found in the Chief Justice John Roberts-led rightwing majority on today’s Supreme Court.  


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