“Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process… In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable…” –Justice Sotomayor
Sotomayor’s dissent on Tuesday’s Supreme Court decision “Schuette v. Coalition to Defend Affirmative Action” was simply stunning. The majority 6-2 decision upheld Michigan’s Proposal 2, the ironically named “Michigan Civil Rights Initiative” (MCRI), which since 2006 has outlawed the use of all race considerations in college admissions via a state voter referendum passed with the support of 58 percent of Michigan’s voters. In her dissent, Sotomayor plaintively stated the obvious, “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 racial discrimination.” In the 58 page dissent she noted:
“Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process. […] And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. 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 the neighborhood 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.’”
Perhaps even more stunning than Sotomayor’s candid and necessary assessment of race relations was the fact that it came over 35 years too late after the Supreme Court’s Bakke decision in 1978 which outlawed racial and gender quotas and delimited “race” to the managerial interests of academic institutions and employers. With the arrival of the neoliberal university after Bakke, and the legal exaltation of managerial interests above the populations universities ostensibly serve, we saw the emergence of the triumph of performative enfranchisement — perhaps most especially on university brochures and webpages — over legal enfranchisement proper and equality of access.
Chief Justice Roberts responded directly to Sotomayor’s dissent, “People can disagree in good faith on this issue… but it similarly does more harm than good to question the openness and candor of those on either side of the debate.” Somehow, his seemingly magnanimous self defense fell flat for his ahistorical whitewashing as much for what his avuncular tone conveyed in the face of Sotomayor’s belated but necessary take on race relations in the country. The question, posed another way, is not about affirmative action as it was understood after the Civil Rights Act of 1964 and up until the Bakke case, but rather how to remember the legacies of affirmative action and its potential historical afterlives. In this sense, Sotomayor’s dissent constitutes a writ against oblivion. But why is this important?
Historical accounts of the policies associated with affirmative action often consider President John F. Kennedy’s Executive Order 10925 of 1961 as its starting point. Kennedy’s executive order mandated the elimination of “racial discrimination in employment [because it injured] both its victims and the national economy.” Quite simply, Kennedy’s order required government contractors to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.” It was a simple proposition with vast social implications. After Kennedy’s assassination in 1963, President Lyndon Johnson extended these mandates through the Civil Rights Act and with his own his own Executive Order 11246 which mandated that colleges and universities extend to higher education — especially, but certainly not exclusively, state funded colleges and universities — what had been the legal standard in employment practices as overseen by the United States’ Equal Employment Opportunity Commission (EEOC).
In academia, for example, the policies associated with affirmative action had doubled the number of Blacks attending colleges and universities, and tripled the number of women on campuses throughout the country up to the Bakke case. Despite the limited success of affirmative action for Blacks and some Latinos, it must be noted that white women were the primary beneficiaries of affirmative action as their progress simply outpaced all minority men and women in every sector. That it was white women who had benefited more from affirmative action than Blacks or Latinos is, of course, part of the whitewashing that creates easy Black and Latino scapegoats; a fact conveniently lost to enfranchised Michigan voters and the SCOTUS majority alike.
Justice Kennedy, along Justice Breyer, offered an expansive paean to the idea that Michigan voters are the rightful heirs of democratic action and capable of determining their right to assert “state’s rights”:
“It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds… Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”
Ironically, the record demonstrates that Kennedy is more than willing to second-guess democratic process if it is expedient to do so (“Citizens United,” anyone?).
And here is where Sotomayor shines in her dissent. Though over 35 years too late, the need to write against oblivion and, in opposition to SCOTUS’ wishful whitewashing, the national archive of meaning is inflected with the will toward better democratic practice. It was the first time in her five years on the Supreme Court that she read her dissent from the bench and it signaled the depth of her conviction. Her colleagues were not her intended audience, they had already made up their minds when the case was heard last year, her audience was the democratic commons.