In a heartfelt dissent to today's Supreme Court ruling upholding Michigan's voter-approved ban on race=-based admission programs in its public colleges, Justice Sonia Sotomayor speaks from experience about the complex impact of such affirmative action programs on her own life.
Sotomayor, who is joined by Justice Ruth Bader Ginsburg, dedicates 58 pages to the dissent and highlights one central theme: Race matters. It's the first time she has ever read a dissent from the bench, though she just recently told the Yale Law Journal that such readings are "like entertainment for the press" and "I really wish it didn't happen at all." But, she added, "it's become a signal of how fiercely someone believes that the Court is wrong, and I understand some of that value."
In her dissent, she notes that voters in Michigan could have used other means to eliminate the use of race-sensitive admissions policies. "They could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through general public awareness campaigns," she says. "Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies."
But instead she invokes the "political process doctrine" and says: "A majority of the Michigan electorate changed the basic rules of the political process" and "uniquely disadvantaged racial minorities."
READ MORE ABOUT TODAY'S SUPREME COURT RULING Here's her reasoning, which tracks with the lower court that struck down the ban: "A citizen who is a University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant's legacy status by meeting individually with members of the Board of Regents to convince them of her views, by joining with other legacy parents to lobby the board, or by voting for and supporting Board candidates who share her position."
She says those options are available to citizens who want the board to adopt policies that might consider athleticism, geography and area of study. But she goes on: "The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considered race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity."
She says the voter initiative "restructures the political process" in Michigan to place unique burdens on racial minorities.
Sotomayor writes, "While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process."
"It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals-here, educational diversity."
And then she gets into the issue of race. "My colleagues," she says, "are of the view that we should leave race out of the picture entirely and let the voters sort it out."
She takes a dig at Chief Justice John Roberts who wrote once, "The way to stop discrimination on the basis of race is to stop discrimination on the basis of race." Sotomayor says: "It is a sentiment out of touch with reality."
Sotomayor says, "Race matters. Race matters in part because of the long history of racial minorities' being denied access to the political process." "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 what neighborhood 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?'"
Sotomayor says, "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."
After citing what she perceives as the negative impact of Michigan's ban on diversity, Sotomayor says she "cannot ignore the unfortunate outcome of today's decision."
"The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities."
At oral arguments Sotomayor was the most vocal opponent of the ban. In fact, at one point, she asked a lawyer for Michigan a line of questions regarding its impact. When she was finished Chief Justice John Roberts pointedly said to the lawyer, "You have been asked several questions that refer to the ending or termination of affirmative action. That's not what is at issue here, is it?"
In her recent memoir, My Beloved World, Sotomayor writes about the impact of affirmative action in her life. She details her time at Princeton: "The Daily Princetonian routinely published letters to the editor lamenting the presence on campus of "affirmative action students," each one of whom had presumably displaced a far more deserving affluent white male and could rightly be expected to crash into the gutter built of her own unrealistic aspirations. There were vultures circling, ready to dive when we stumbled. The pressure to succeed was relentless, even if self-imposed out of fear and insecurity."
Later she tells a story about an experience at a recruiting dinner hosted by a well-respected Washington firm. One partner told her the "problem" with affirmative action is that "you have to wait to see if people are qualified or not. Do you think you would have been admitted to Yale Law School if you were not Puerto Rican?"
"It probably didn't hurt," a stunned Sotomayor said, "but I imagine that graduating summa cum laude and Phi Beta Kappa from Princeton had something to do with it too."
Sotomayor, 59, writes that "much has changed" in the thinking about affirmative action "since those early days when it opened doors in my life. But one thing has not changed: to doubt the worth of minority students' achievement when they succeed is really only to present another face of the prejudice that would deny them a chance even to try."