Supreme Court Justice Sonia Sotomayor didn’t mince words when she dissented from the 6-2 ruling upholding Michigan’s ban on affirmative action in college admissions. She read it from the bench and there’s no doubt that she was directing her words at the Chief Justice.
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. 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. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter. [Emphasis added]
The Chief took note:
The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” … But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. 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.
A little touchy, are we?
There would be no need in this country for affirmative action if there hadn’t been 300 years of racial discrimination and majority-enforced segregation at nearly every level of government and education. It wasn’t wiped out by two laws and court rulings fifty years ago; it is still rampant and insidious today. Just because the white patriarchs who never felt the sting or stigma of racial discrimination think affirmative action isn’t necessary any more doesn’t make it so.