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Sotomayor Explains Holder &
Obama's Reasoning on Race

Dan Henninger
May 2, 2014
Attorney General Eric Holder, in a speech to Justice Department employees, praised Justice Sonia Sotomayor's dissent in last week's Supreme Court decision upholding Michigan's ban on race-based admissions to its state universities. He called it "courageous and very personal."

It was personal. Toward the end of her 58-page dissent, she said this about the six Justices who formed the plurality:

"More fundamentally," Justice Sotomayor wrote, the plurality "ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America." Those colleagues are Chief Justice Roberts and Justices Kennedy, Alito, Scalia, Breyer and Thomas.

Justice Sotomayor's dissent in Schuette v. BAMN provides the most complete explanation I've seen of the reasoning behind the views on race of President Obama and Attorney General Holder. Over five years, the administration has repeatedly challenged various states on their voting practices, intervened to alter the racial composition of public-school populations and racial patterns in housing. Disagreement between Democrats and Republicans over voter ID laws has been particularly contentious.

Some of this is politics. But some of it is belief about the status of race in America a half century after passage of landmark civil-rights legislation in 1964.

"Race matters," Justice Sotomayor wrote. It matters "because of persistent racial inequality that cannot be ignored and that has produced stark socioeconomic disparities."

In 2006, Michigan voters by 58% approved a constitutional amendment that forbids the use of race-based preferences for admissions to the state's universities. Eight other states have similar bans, including California.

Michigan's ban on race-based admissions, says Justice Sotomayor, is not the result of "invidious intent" to discriminate as in the past. Instead the Michigan "majority" resorted to something that she calls "the last chapter of discrimination." Its admissions amendment unfairly "changed the rules" of the political process. Prior to the amendment, she says, minorities persuaded Michigan's elected Board of Regents to use "race-sensitive" university admissions policies. The voters' ban eliminated the Regents' policy and therefore "burdened racial minorities."

Some, including the Court's majority, would say the amendment was a proper exercise of the democratic political process. Justice Sotomayor replies: "While our Constitution does not guarantee minority groups victory in the political process...t guarantees the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals." In Michigan, that goal was the value of "racial diversity" in the student body.

Equal protection, she adds, is about groups, not mere individuals: "Discrimination against an individual occurs because of that individual's membership in a particular group."

And so believes the Obama administration.

Last year, Justice sued to stop Louisiana's school vouchers program, arguing that when black parents took their kids out of public schools to attend, say, a Catholic school, this increased "the racial identifiability" of the schools. That is, the abandoned public schools had too many white students and so were no longer diverse and had become unequal.

This presumably would also be the rationale for the Justice Department's interventions against voter ID laws, most famously its lawsuit last year against North Carolina. By requiring an ID, the majority is "changing the rules" in a way that disadvantages black voters. In Justice Sotomayor's words: "This means vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing." These are what she calls "third-generation barriers."

In the last line--a footnote--of his concurring opinion, Justice Scalia (joined by Justice Thomas) says that Justice Sotomayor is likening the "majority" in Michigan to the same "majority" who created the Jim Crow laws. She denies that. So what is an average voter supposed to believe?

The Sotomayor dissent in Schuette, as its supporters say, is an important statement of progressive belief about race. Let's assume they, Justice Sotomayor, President Obama and Mr. Holder wish most Americans would agree with their point of view on race and so support it. If only all could read the Sotomayor dissent to render a national opinion about their racial views.

We can guess. I think it's fair to say that many who read her reasoning on how Michigan's voters or other "majorities" are using the political process to harm minorities and produce inequality in every aspect of American life would say: I just don't get the argument. They might, for instance, ask her about the four-decade catastrophe of urban public schools.

The intricate case she is making about "third-generation barriers" to equality and such--arguments developed by liberal law professors the past 25 years--is not persuasive. I doubt an open-minded majority would agree with it. It could, of course, be imposed anyway by court mandate.

One is left to conclude from the Sotomayor dissent that no matter how much progress people think has been made toward fulfilling the mandate of the 14th Amendment, an argument of some sort will be fashioned to say that equality is forever disappearing toward the horizon, and unattainable. After 50 years, where does that leave us? Polarized.

Daniel Henninger is Deputy Editorial Page Director of the Wall Street Journal and a Fox News contributor. He also writes a column named "Wonder Land" which appears every Thursday.

This article was originally featured in The Wall Street Journal. Refer to original article for related links and important documentation.

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