“I respectfully dissent.” Three simple words at the end of a fifty-eight page treatise, part constitutional history lesson, part rousing defense of our American values of equal access and opportunity to our political and civic process. Supreme Court Associate Justice Sonia Sotomayor wrote in reaction to the majority rule upholding Schuette, Attorney General of Michigan v. Coalition to Defend Affirmative Action. The decision does not touch affirmative action laws. Rather it upholds the right for voters to make affirmative action laws in their states. Justice Sotomayor’s argument focuses on the importance of checks and balances, a basic tenet of our democratic process that acknowledges human propensity to overreach and the moral obligation to attain equilibrium. Specifically, she cites concern with majority rule squashing minorities, not a fabrication of her imagination but an historic condition confirmed by a quick trip to the Declaration of Independence exhibit at the National Archives. The push/pull of protecting states rights from federal abuse is contained in this document, in effect a foundational majority/minority tension that pulses through virtually every American social and political struggle.
Little public discourse occurs in 21st century. Instead, posturing, offense, cheap shots, and attacks have created an environment where we talk past each other. Most times liberals preach to liberals, conservatives to conservatives. Our 24/7 multimedia culture (of which I form a part) douses the hashtag flames with kerosene but does very little to shun ideology to question, challenge, hold the people in power accountable, and stand up for the little guy. In the case of Justice Sotomayor’s decision, the conservative media mill immediately spun out of control. Demeaning her intellect, her arguments were described as “intellectual hogwash” and “legally illiterate.” Furthermore, the critiques reek of sexism—the editors of the National Review identify “emotion” and describes her dissent as “overheated.”
As I expressed on MSNBC’s Politics Nation when the Reverend Al Sharpton invited me to be his guest and asked for my reaction:
I’m not surprised.
I covered Sotomayor’s 2009 nomination and confirmation hearings and observed the conservatives attacks—from the media and lawmakers—this last egregious because the duty to “advise and consent” quickly spiraled into sexist and prejudiced attacks as I write in “A (wise) Latina Meet THE Wise Latina.” The double standard reigns in these critiques which overlook the judicial activism and “emotion” of their own:
…who shook his head and mouthed “not true” during the 2010 State of the Union in reaction to President Obama’s assertion of the flood of corporate spending in political campaigns after a Supreme Court decision.
In speeches and his writings, Justice Antonin Scalia has forcefully made clear his political views.
Where is the Right’s criticism of his intellectual position—originalism—which mistakenly assumes that law exists stripped of cultural context? The law is nothing more than a narrow reading of legal texts. As someone who is highly trained in literary theory, a text—a novel, a folktale, or the Magna Carta—is an expression of a culture and a moment. What transcends are the values. But a reading—its significance to a people and an era—needs to be updated every generation. This is why every few years, new editions of Macbeth or Don Quixote are released and why our laws needs to be revisited such as the three-fifths compromise counting slaves partially for population counts.
Back to this decision, credible arguments against affirmative action–namely, this policy doesn’t help the neediest of minorities–exist. However the latent resentment lacing these ideological attacks doesn’t offer smart prescriptions such as ending legacy, athletic, and donor preferences in admissions, encouraging colleges to subsidize expensive and difficult standardized test preparation, or giving all poor kids an advantage when applying to college as detailed in The Atlantic.
Under the guise of states’ rights, citizens’ opportunity to participate in society is increasingly dependent on where they live. The parts affect the whole. States without an educated and prepared workforce will be unable to compete not just with each other or Americans from other states but with citizens from China and India. The significant drag on our economy and our global competitiveness is why Fortune 500 and military leaders–neither bastions of liberal–support this policy.
The ideologues will never see this which is why our vigilance and participation in our civic and political system is crucial. Whether it’s affirmative action or voting rights, they don’t have the lockdown on our country’s future. Our actions–or inaction–does.
Click to watch my participation in a panel discussion on the conservative reaction to Justice Sotomayor’s dissent on MSNBC’s Politics Nation with Al Sharpton and MSNBC contributor Dr. James Peterson. This broadcast aired on April 23, 2014.Where do you stand on affirmative action?