Must opposition to policies that (may) help certain minorities be born out of animus, whether intentional or not? This was a central theme in Schuette, in the dueling opinions between Justices Sotomayor, Scalia, and the Chief. It harkened back to Windsor, where Justice Kennedy, also in the majority, stressed that it was only out of animus that the government could enact a law banning same-sex marriage. In United States v. Windsor, Chief Justice Roberts wrote separately to stress that opposing same-sex marriage does not make one a bigot.
That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising— and hardly enough to support a conclusion that the “principal purpose,” ante, at 22, of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snip- pets of legislative history and the banal title of the Act to which the majority points suffice to make such a show- ing. At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.
In Schuette, the Chief offered a similar concurring opinion, in response to Justice Sotomayor’s insinuation that the passage of Prop 2 by millions of Michigander was was another “chapter of discrimination.” After listing a long train of civil rights abuses, from denying blacks the right to vote, to literacy tests, to poll taxes, to gerrymandering (hello Shelby County), to bussing, we come to Prop 2.
Justice Sotomayor wrote:
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. At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities out of the political process altogether by withholding the right to vote. This Court intervened to preserve that right. The majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too. The majority persisted. This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration. Although these political restruc- turings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally in the political process.
This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.
Roberts replies, much like he did in Windsor, that opposing affirmative action is part of a rigorous debate, and does not make one intolerant.
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.” Post, at 46. And it urges that “[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Ibid. 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. Post, at 45. To disagree with the dissent’s views on the costs and benefits of racial prefer- ences is not to “wish away, rather than confront” racial inequality. Post, at 46. 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.
Justice Scalia, as he often does, unloads both barrels at Justice Sotomayor.
As Justice Harlan observed over a century ago, “[o]ur Constitution is color-blind, and neither knows nor toler- ates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michi- gan wish the same for their governing charter. It would be shameful for us to stand in their way.11
11 And doubly shameful to equate “the majority” behind §26 with “the majority” responsible for Jim Crow. Post, at 1–2 (SOTOMAYOR, J., dissenting).
Justice Sotomayor feigns distance from this assertion in a footnote.
I of course do not mean to suggest that Michigan’s voters acted with anything like the invidious intent, see n. 8, infra, of those who histori- cally stymied the rights of racial minorities. Contra, ante, at 18, n. 11 (SCALIA, J., concurring in judgment). But like earlier chapters of political restructuring, the Michigan amendment at issue in this case changed the rules of the political process to the disadvantage of minority members of our society.
But this seems like a subtle head fake. In other words, I’m not saying they’re discriminating, but I’ll let the evidence supporting that conclusion (which my opinion is full of) speak for itself. That sentiment is palpable from her opinion.As Scalia noted in his opinion, the juxtaposition between “the majority” who denied Blacks the right to vote with “the majority” who enacted Prop 2 is telling. She calls the majority “out of touch with reality.”
This view (and that of Justice Ginsburg, but apparently not Justice Breyer) places her at strong odds with the narrow reed on which affirmative action rested in Grutter–only academic diversity, and not racial justice. To impute the imprimatur of Jim Crow onto millions of Michigander who voted for Prop 2, when the Supreme Court had just said this practice is *barely* constitutional does, in the words of the Chief, frustrate any meaningful debate on the topic.
Affirmative action embodies a vigorous debate that will last, by Justice O’Connor’s count, another 14 years or so. It is very, very counterproductive to assert that anyone who opposes some policy does so out of intolerance, bigotry, or ignorance. This very well may be the case for some, but painting with a “brush of bigotry” serves no positive purpose.