The Scalia - Sotomayor Thunderdome

Ed already brought you up to date on the SCOTUS decision regarding the Michigan referendum that ended affirmative action in college admissions, so if you happened to miss the story, read that first. It was one of the more raucous decisions in a while, with plenty of twists and turns in terms of who went with the majority or the dissent and what they said. But the Washington Examiner dug a bit deeper later in the day, finding what amounted to a bit of a slug-fest in the footnotes between Sonia Sotomayor and Antonin Scalia.

The scuffle erupted over Sotomayor’s not so thinly veiled inference that the hateful majority of voters in Michigan must be a bunch of blazing cat fur racists. Going one step further, she even invoked Jim Crow laws in her comments. Scalia was not exactly charitable in his response.

“As Justice Harlan observed over a century ago, ‘[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,'” Scalia concluded, quoting the dissent in Plessy v. Ferguson. “The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.”

And then, the Parthian shot: “And doubly shameful to equate ‘the majority’ behind [the constitutional amendment] with ‘the majority’ responsible for Jim Crow,” he added in a final footnote, citing the first two pages of Sotomayor’s dissent.

I realize that such comments aren’t exactly on par with a WWE wrestler jumping out of the ring to grab a folding chair, but by the standards of Supreme Court written opinions, it’s not far off. Still, reading Sotomayor’s comments leaves us with some unsettling questions.

First of all, allow me to say that I’m as thrilled as the next guy to finally have a Wise Latina on the court and all, but is this really the level of discourse we can expect to see enshrined in the official records of our nation’s highest court for the next several decades? Invoking Jim Crow here should be a serious red flag for any observer, and even one of the other liberal justices bailed out on her on that one. I assume Justice Sotomayor was actually present in the Court when the arguments were being made and was aware of the substance of the referendum in question. We’re not talking about voting rights for minorities here, nor freedom of speech or religion. This was about college admissions. (Which, to be brutally honest, isn’t a constitutionally assured right for anyone.)

And the action in question, rather than restricting certain people from any activity along those lines, actually spoke to ensuring that everyone would have an equal opportunity at an education in taxpayer funded educational institutions regardless of race, gender, religion, etc. And yet, Sotomayor managed to squeeze this gem into her own footnotes.

“I of course do not mean to suggest that Michigan’s voters acted with anything like the invidious intent of those who historically stymied the rights of racial minorities,” she countered. “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 if we are to assume that what she wrote there is true, then we must also assume that minority students are less able to qualify for college acceptance on their own merits. I would certainly hope that’s not what she is suggesting. Also, it’s not as if there aren’t already numerous advantages available based on demographics alone, such as the wide variety of scholarships available only to minorities. (One of the huge barriers to college access is surely the ability to afford the tuition as well as having the grades required.) Yet I don’t hear anyone objecting to those. Then again, if somebody were to suggest a European Heritage Scholarship Fund it would be instructive to see the reactions.

Scalia’s rather dismissive reaction is not surprising here. What may come as a shock is the structure of Sotomayor’s arguments. This isn’t an instance of two people coming from opposing ideological backgrounds taking a different interpretation of some statute… that’s to be expected and even desired to ensure a robust debate on the merits of each case. But this dissent was more a case of other justices reading it and simply saying, “Um… what?”