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Conservatives Rip Into Sotomayor's 'Legally Illiterate' Dissent On Race

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AP Photo / Cliff Owen

The National Review published an editorial trashing the Obama-appointed justice's blistering dissent as "Orwellian" and "legally illiterate" after the Supreme Court upheld Michigan's ban on affirmative action.

"Her opinion is legally illiterate and logically indefensible, and the still-young career of this self-described 'wise Latina' on the Supreme Court already offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law," wrote the editors of the influential magazine. "Justice Sotomayor has revealed herself as a naked and bare-knuckled political activist with barely even a pretense of attending to the law, and the years she has left to subvert the law will be a generation-long reminder of the violence the Obama administration has done to our constitutional order."

Appearing on Fox News, Steve Hayes of the Weekly Standard said the first Latina justice's lengthy opinion was driven by "emotion."

"This was a decision written by somebody who was writing about emotion," he said, as quoted by the Daily Caller. "It was President Obama's 'empathy standard' — that's what he was looking for when he nominated her, that's what I think he got."

In a 6-2 ruling written by Justice Anthony Kennedy, the Supreme Court upheld Michigan's Proposal 2, a 2006 ballot initiative that banned affirmative action in state colleges and public employment. The justices didn't take a position on the constitutionality of affirmative action, but validated the right of a majority of Michigan's voters to prohibit it. Conservatives widely praised the outcome.

Sotomayor's opinion, co-signed by Justice Ruth Bader Ginsburg, argued that judges "ought not sit back and wish away, rather than confront, the racial inequality that exists in our society." It also attacked Chief Justice John Roberts' views on race as "out of touch with reality." She took the rare step of reading her dissent at length from the bench Tuesday before a packed chamber.

Conservative columnist John Fund, writing for the National Review, attacked Sotomayor's argument as "overheated," "at odds with the facts" and reflective of an "endless fixation on race."

Sotomayor's opinion rankled conservatives on the Supreme Court, too -- and not just Roberts, who responded to her broadside. Justice Antonin Scalia, in his concurring opinion, slammed Sotomayor's reasoning as "shameful."

"As Justice Harlan observed over a century ago, '[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.' The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way," Scalia wrote. In an accompanying footnote, he referenced Sotomayor's opinion and added, "And doubly shameful to equate 'the majority' behind [the Michigan ballot initiative] with 'the majority' responsible for Jim Crow."

About The Author

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Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.