I was recently invited to contribute a regular column for the American Spectator. My first piece focuses on Justice Sotomayor’s dissent in Schuette, and in particular how she sought to connect the “majority’s” passage of Michigan Amendment 2 with earlier “majority’s” restructuring the political process to deny blacks the right to vote, impose poll taxes, and eliminate school bussing. (I should note that I do not have control over the title, the lede, and the photograph used)
This historical arc elicited vigorous responses from (unsurprisingly) Justice Scalia, and (somewhat surprisingly) the usually even-tempered Chief Justice. Sotomayor, later in her opinion, explained that she was only using these historical examples to illustrate the political process theory, and she was not imputing racial animus to all of the Michiganders who passed this law. Though, the latter part of her opinion abandons this pretense, and calls those who oppose affirmative action “out of touch with reality.” This is a not-so-nice way of saying ignorant.
Following through on this the message was Jeff Toobin, who in his most recent column looks to the comments of Cliven Bundy and Donald Sterling to prove that Sotomayor was right. The unfortunate subtext of Toobin’s argument is that those who oppose affirmative action are on the same wavelength as Cliven Bundy and Donald Sterling.
What troubled me most about Sotomayor’s opinion, and by extension Toobin’s column, was an effort to create the appearance of bigotry by association, and suggest that opposition to race-based preferences can be based on either racial animus, or ignorance, rather than good-faith disagreements about a controversial policy. These comments do little more than to stifle debate, and shut down any discussion on the other side. This is what drew such a strong retort from the Chief Justice.
Here is an excerpt from my article
Sotomayor does posit that some Michiganders might have supported the amendment “out of racial animus.” But her preferred mode of criticism is to suggest that the other side, even if not motivated by racial animus, is simply ignorant. She scolds her colleagues and writes that their “refusal to accept the stark reality that race matters is regrettable.” (For emphasis, she repeats the phrase “race matters” ten times in the span of four paragraphs). Making it personal, she faulted Chief Justice Roberts’s famous assertion that, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” But turning Roberts’s aspiration on its head, Sotomayor explains, “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.”
This prompted a rare response from the usually even-tempered Chief Justice. “People can disagree in good faith on this issue,” Roberts wrote, “but it similarly does more harm than good to question the openness and candor of those on either side of the debate.” Calling those who voice genuine opposition in good-faith “out of touch,” is just a weak attempt to stifle debate.
No one is so naïve as to think that all vestiges of racial discrimination have been wiped away. Recent statements by Donald Sterling and Cliven Bundy bear witness to this fact. But equally significant has been the universal condemnation and ostracization of these newly crowned pariahs. Bundy was prematurely ejected from his fifteen minutes of fame. Sterling was bounced out of the NBA with a lifetime ban, and will be forced to sell his team.
But all of this, to New Yorker columnist Jeffrey Toobin, just proves that Sotomayor was right. In a piece titled “Chief Justice Roberts, Meet Bundy and Sterling,” Toobin baldly asserts that to the Roberts Court, “there are no Bundys and Sterlings,” as this “ugly corner of contemporary American life…is entirely invisible in recent Supreme Court rulings.” The unfortunate subtext of Toobin’s column is that those who oppose affirmative action are on the same wavelength as Cliven Bundy and Donald Sterling.
Contrary to Toobin’s assertion, this is not a country “where the Bundys and Sterlings still hold considerable sway.” Even the Chief Justice’s oft-cited claim in the Voting Rights Act case that “times have changed,” does not in the least suggest that the change is complete. Toobin writes, “The vile words of the rancher and the basketball tycoon showed just how right Sotomayor was.” Yet, the reaction to Sterling and Bundy shows that Sotomayor is at most only half right.
Last year, dissenting that the Defense of Marriage Act should have been upheld, Roberts cautioned his fellow justices “not to tar the political branches with the brush of bigotry.” This advice applies equally in the context of affirmative action. We are an evolving nation, with differing visions of how to further pursue a vision of equal justice under the law. The wrong answer is to use bigotry by association to discredit the other side. The right answer is to resolve these questions in open debate.
The power of stifling debate by hurling the banner of animus is not limited to affirmative action. This last paragraph, which I decided to cut from the article, speaks to the issue of same-sex marraige.
Lurking beyond affirmative action is the debate over same-sex marriage. A recent public statement signed by dozens of scholars who support same-sex marriage opposed efforts to silence dissent on the topic, and reaffirmed their “unwavering commitment to the values of the open society and to vigorous public debate-the values that have brought us to the brink of victory.” Once the allegation is lobbed, debate ceases. Society, and judges in particular, should take great care to fully understand differing rationales for different social policies. They must separate good-faith arguments from those of pure hatred. The latter must be rejected, and the former must be debated on the merits. The claim of bigotry, whether accurate or not, is one of the most powerful charges in our society today. There must be a way of distinguishing moral disapproval, the basis of many of our laws, and animus. Resolving this question, rather than blindly painting with a brush of bigotry, will make our collective self-portrait of equality that much more just.