The Supreme Court by a vote of 6-2 decided to uphold Michigan’s ban on affirmative action in its admission policies in state universities and colleges which was passed by Michigan voters to amend the state constitution. The two dissenters were Justice Sotomayor and Justice Ruth Bader Ginsburg. Usually swing voter Justice Kennedy sided with the majority this time. Justice Elena Kagan did not sit because of a conflict while the U.S. Solicitor General. The majority opinion stated the issue was whether voters had a right to nullify affirmative action in college admissions and side stepped the whole issue of affirmative action. The court gave voters the final say in making the decision. A lower court had ruled the opposite.
It is disheartening to keep reading and hearing how all the gains accomplished in the courts and that includes the Supreme Court for minorities affected and still affected by racism and discrimination are being taken away by the present courts. From voting rights, civil rights and criminal rights, the Roberts Supreme Court has been busy taking away the hard fought and won rights of decades ago. And now the Supreme Court suggests that if voters in a state election want to do away with an issue of civil rights, they are free to do so by putting it to the vote of its citizens. Other states will undoubtedly follow Michigan’s lead, now that they have the go ahead by the Supreme Court. And other rights are at issue including same sex marriage in the future. While voters can go to the ballot to eliminate affirmative action in Michigan state college admissions, those who want preferential treatment for children of alumnae in admission can just go to the Board of Trustees.
It’s interesting that the court stated that the issue was not about affirmative action but about whether the states can choose to eliminate affirmative action by the collective vote of its citizens. Whenever anyone says it’s not about an issue, you can bet it’s everything about the issue. The court cannot just decide the right of the Michigan voters to eliminate affirmative action without looking at the reasons for affirmative action which is to redress past discrimination. And for those in this country who think the past history of racism has been eradicated by any act in this country, they are living on cloud nine. And they need to return to the reality of the U.S.
Justice Sotomayor who once described herself as “ an affirmative action baby” wrote a scathing dissenting opinion which was 58 pages and longer than all of the majority opinions combined. And for the first time ever, she read her dissent out loud in the court room. When she was appointed to the Supreme Court, I was overcome with emotion. I knew that it meant someone was once again on the Supreme court who understood what it means to be a minority and was vocal about it. Preferring to use the term “race sensitive admissions policy” in her dissenting opinion, she explains how the term “affirmative action” has become incorrectly analogous in the minds of some as being unqualified otherwise and based on race alone.
Justice Sotomayor spoke to the democratic process and the Michigan voters’ amendment of their constitution. She amply summed it up by saying that a democratic process still requires checks and balances to ensure that minorities are not oppressed by the process. Voters may make changes to their constitutions and laws but may not deny equal protection of the law to any citizen. Justice Sotomayor’s dissent relies on previous cases that ruled the majority deprives minorities of Equal Protection guaranteed under the U.S. Constitution when its governing has a racial focus targeting a policy or program that “inures primarily to the benefit of the minority.” When the political process burdens only a racial minority, that should be cause for judicial scrutiny, says Justice Sotomayor in her dissent.
The Supreme Court is supposed to understand injustice and right any wrongs committed by injustices. Yesterday’s opinion showed that the Roberts Court has no understanding of racial injustice and is not willing to correct any wrongs committed by those injustices. Justice Scalia stated in his concurring opinion that it would be “shameful” for the court to stand in the way of the Michigan voters who chose to nullify affirmative action by constitution amendment. I think it is shameful that the Supreme Court turned a blind eye to past racial injustices and refused to see past its own political ideology or agenda.
Debbie Hines is a trial lawyer who is licensed to practice before the Supreme Court. She is seen frequently in the media on air as a frequent legal analyst appearing on BET, Arise TV, C-Span, RT- America, TV One, Fox 5, NBC4 and WUSA 9 , among others.