At the heart of Thursday’s affirmative action ruling is a struggle over whether the Constitution is “colorblind.” In gutting affirmative action in higher education, the Republican-appointed majority, led by Chief Justice John Roberts, claims to think so.
But the Democratic appointees dismantled that ignorant notion with two separate dissents spanning nearly 100 pages in total — one authored by Justice Sonia Sotomayor and the other by Justice Ketanji Brown Jackson.
“[T]he six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law,” Sotomayor wrote in her dissent, joined by Jackson and Justice Elena Kagan.
Among other things, the Barack Obama appointee blasted the majority’s perverse reliance on the landmark school desegregation case of Brown v. Board of Education. Roberts’ opinion flatly recites, without full context, that the decision requires admitting students “on a racially nondiscriminatory basis.” Forced to point out the obvious, Sotomayor reminded readers (and the majority, apparently) that Brown “was a race-conscious decision.” Given the country’s racist history, Brown “recognized the constitutional necessity of a racially integrated system of schools,” she wrote.
For that reason, Sotomayor called the court’s “recharacterization of Brown” not only a “revisionist history” but “an affront to the legendary life” of Justice Thurgood Marshall, the lawyer who led the Brown litigation. He later served on the Supreme Court as its first Black justice, where he promoted race-conscious admissions. Marshall, she wrote, unlike the majority, “was a champion of true equal opportunity, not rhetorical flourishes about colorblindness.”
Jackson, too, picked apart the majority’s ignorant quest:
With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life. …
It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish. The Joe Biden appointee closed her dissent by calling out another perverse part of Roberts’ ruling. That is, despite the majority’s claimed abhorrence of racial considerations, Roberts made clear in a footnote that Thursday’s revolutionary ruling doesn’t bind the nation’s military academies, which weren’t a party to the dispute. The chief justice noted in his opinion “the potentially distinct interests that military academies may present.” Given Roberts’ majority opinion, Jackson observed: The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).
She closed her devastating dissent by lamenting that unnecessarily imposing that result “is truly a tragedy for us all.” Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump investigations and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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