In it, but not of it. TPM DC
The Obama-appointed justice took the rare step of reading her dissenting opinion at length from the bench while a large audience packed the chamber and press gallery to hear oral arguments in two high-profile cases.
"[T]o know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process," Sotomayor wrote. "The plurality's decision fundamentally misunderstands the nature of the injustice worked by [the Michigan ballot initiative]."
In the 6-2 controlling opinion, Justice Anthony Kennedy stressed that the court was not ruling on the constitutionality of affirmative action; it was simply holding that Michigan's voters had a right to ban the use of race in a factor in the college admissions process. He concluded that the initiative was consistent with the Constitution's equal protection clause.
"Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice," Kennedy wrote. "That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity."
To Sotomayor, this was backward.
"In my colleagues' view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable," she wrote. "As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society."