The Contradictions Of Sonia Sotomayor

Marxists have long been fond of arguing that capitalism would collapse due to its “internal contradictions.” Liberalism may not collapse, but its contemporary contradictions are glaringly, gratingly on display in Justice Sonia Sotomayor’s 58 page dissent, joined by Justice Ruth Bader Ginsburg, in the recently decided Schuette v. BAMN.

I would like to mention only one of them here, but it is a crucial point that so far as I’ve seen no one has mentioned and that undermines the entire “political process” doctrine at the core of the liberal argument that it is racial discrimination for a state to prohibit racial discrimination.

Here is how Justice Sotomayor presents the argument at the beginning of her dissent: “As a result of §26 [the provision the citizens of Michigan added to their constitution prohibiting racial preference policies], there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else.”

Citizens can lobby, she continues, for “admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek” is preferential treatment based on race, or in Sotomayor-speak, “a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity.” And her bottom line conclusion: “Our precedents do not permit political restructurings that create one process for racial minorities and a separate, less burdensome process for everyone else.”

Forget for now that under our Constitution discrimination based on race is, and should be, fundamentally different from and far worse than discrimination based on athletic ability or legacy status. Also forget her obfuscatory holistic “race-sensitive” claptrap about barring advocacy of considering race “in an individualized manner,” since what §26 actually barred was the admission of students who would not have been admitted but for their race or ethnicity. Forget that race preference policies may not in fact “inure to the benefit” of minorities, as the “political process” doctrine requires. Forget, in fact, that some minorities — especially Asianssuffer under affirmative action. And forget as well Sotomayor’s silly and much ridiculed attempt to ban the term “affirmative action” in favor of “race-sensitive admissions,” and its accompanying justification that “[s]ome comprehend the term ‘affirmative action’ as connoting intentional preferential treatment based on race alone–for example, the use of a quota system.” Sotomayor herself, with Ginsburg in tow, fails to “comprehend” that affirmative action, by whatever name, means many individuals are admitted and others rejected solely because of their race.

Forget all that. Look instead at the one contradiction that undermines the whole “political process” doctrine: Sotomayor confuses a political classification — “persons interested in race-sensitive admissions policies” — with a racial classification — “one process for racial minorities and a separate, less burdensome process for everyone else.”

Michigan’s prohibition of racial preferences, in short, not only “inures to the benefit of everyone” (that’s my opinion), but more to the point: whatever burden it imposes is neither based on race nor does it uniquely impose a disadvantage on racial minorities as the “political process” doctrine requires. The burden of this decision does not fall on a racial class but on everyone, regardless of race, “interested in race-sensitive policies.” Underscoring that point, the ACLU issued a statement emphasizing that “We’re All Losers After the Supreme Court’s Decision in Schuette,” not just racial minorities, and listed a large number of non-racial examples (university officials, diversiphiles of all hues, the geographically or athletically diverse, etc.).

Since every political decision results in various losers, the “political process” doctrine defended so vociferously by Sotomayor thus falls of its own weight.


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