Supreme Court Justice Antonin Scalia faulted Justice Sonia Sotomayor for making what he regards as a "shameful" suggestion that the Michigan voters who decided to ban affirmative action in college admissions were motivated by racism.
Scalia wrote a concurring opinion upholding a 2006 ballot initiative that amended Michigan's constitution to ban affirmative action.
“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.
Sotomayor, in her dissent, opened by describing three stages of "the majority" discriminating against racial minorities in the political process, beginning with the Jim Crow laws that flouted the 15th Amendment.
"This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration," she wrote. "Although these political restructurings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally in the political process. This case involves this last chapter of discrimination."
Sotomayor offered her own footnote, cutting against Scalia's charge. "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."
Justice Stephen Breyer disagreed with his liberal colleague. "This case, in contrast, does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another," Breyer wrote in a concurring opinion that upheld the constitutional amendment.
"[U]nelected faculty members and administrators, not voters or their elected representatives, adopted the race-conscious admissions programs affected by Michigan’s constitutional amendment. The amendment took decisionmaking authority away from these unelected actors and placed it in the hands of the voters."