I'm Wise To You

Every now and then Jeffrey Toobin goes off in The New Yorker on something that's got him excited. It's usually best--for Toobin's sake as much as anyone--to ignore him, so maybe I should just leave alone his latest post on how Cliven Bundy and Donald Sterling help prove Justice Sotomayor was right in the Schuette case (where the Court upheld the right of Michigan voters to prohibit the consideration of race in the college admission process).

Except it's Justice Sotomayor I want to talk about, not Toobin.  Toobin thinks the controversies regarding statements made by Bundy and Sterling tell us something important about race in America. They do, of course--that things are almost incomparably better than they were fifty years ago, but I'll save that for another post (that I'll never get around to writing).  But let's look at what Justice Sotomayor said in her dissent--and Toobin quotes approvingly--back in those faraway days before anyone had heard of Bundy and Sterling.

[Sotomayor] went beyond the simple bigotry of the Bundys and Sterlings and found that more subtle wounds of racism still exist in this country. “Race matters,” she wrote, “because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Indeed, Sotomayor threw Roberts’s famous line back at him. She quoted him—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—and then wrote, “It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as not sufficient to resolve cases of this nature. While the enduring hope is that race should not matter, the reality is that too often it does. Racial discrimination … is not ancient history.”

She felt strongly enough about her opinion that she read it in court.  Yet I don't get why anyone would think this is convincing.

In fact, I don't see it as a an argument so much as a condescending lecture.  Yes, there is racism.  The white guys (and one black guy) on the Court she thinks she has to tell this to are already quite aware of that fact.  So what?

First, of what legal relevance is this? Even if Sotomayor was precisely right in how bad the problem is, this is the sort of thing that legislatures should take into account in trying to come up with a solution.  Sotomayor is free to quit and run for office, but as a judge she shouldn't be replacing the wishes of legislatures with her own.

Second, everyone understands feeling belittled and out of place--slights, snickers, silent judgments, the whole deal.  This alone doesn't mean the law must respond in the way Sotomayor would wish. (In fact, we've had plenty of ethnicities who were openly despised by our society and were able to integrate into that society without civil rights laws.) Of course, when you say things like this, the response is often "that's just your privilege speaking--you don't understand what it's like to be black, Latino, a woman, homosexual, [fill in the blank]"--exactly the sort of condescension I'm referring to that turns every conversation into a lecture.

Third, she writes that color-blindness is "not required by our Constitution." Maybe it is, maybe it isn't, but the central issue in Schuette was whether the citizens of Michigan should be forced to judge people by their race.  Justice Sotomayor is so sure that judging people by their color or ethnicity is the right solution (on our way to a world where we don't judge people by their color or ethnicity) that she doesn't think citizens should be allowed to do anything else.

Fourth, she believes color-blindness "has properly been rejected." By whom?  By people who agree with her.  Well, that settles that.  She then goes on to note how racial discrimination still exists. As if this goes to the question at hand.  You can be opposed to differential treatment of races whether there's no racism at all or so much that every white person is fighting for the return of slavery.  But Sotomayor apparently thinks if her opponents just understood how bad the problem is they wouldn't see any acceptable solution but hers.

Finally--and this is the most bizarre thing of all--she's bothered by the slights, the snickers, the silent judgments that cripple people into thinking "I do not belong here." How is affirmative action going to fight that?  It causes it!  It changes standards for certain groups--often blacks and Latinos--so that they're not required to have the same qualification as others (others being not just whites, but also honorary whites, like Jews and Asians). In such a situation, not only will people wonder if these groups should be there, they'd be right to ask the question.  And as a follow-up, many defenders of such programs then won't be honest about how precipitously standards are dropped, or will even attack the idea of merit itself.

Toobin finds Justice Sotomayor's argument powerful.  At least he's not on the Court.  As for Sotomayor, she's got a lot of years left to serve. Let's hope she grows wiser.