Marc Stein: Sotomayor v. Roberts: Race, Affirmative Action, and Impatience

We welcome a guest post today from Marc Stein, author of Sexual Injustice: Supreme Court Decisions from Griswold to Roe. In the book, Stein focuses on six major Supreme Court cases, examining the more liberal rulings on birth control, abortion, interracial marriage, and obscenity in Griswold, Fanny Hill, Loving, Eisenstadt, and Roe alongside a profoundly conservative ruling on homosexuality in Boutilier during the 1960s and 1970s.

In today’s post, Stein explores the recent opinions of Justices Roberts and Sotomayor regarding racial discrimination and affirmative action.

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The U.S. Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action, which upheld the state of Michigan’s ban on race- and sex-based affirmative action in public employment, public education, and public contracting (except when required to maintain eligibility for federal funds), featured an unusually fierce exchange of words between Associate Justice Sonia Sotomayor and Chief Justice John Roberts. Responding to an earlier affirmative action decision in which Roberts had declared, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Sotomayor wrote that this was “a sentiment out of touch with reality.” She added, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” Roberts replied in Schuette, “People can disagree in good faith on this issue, but it . . . does more harm than good to question the openness and candor of those on either side of the debate.” Sotomayor apparently felt so strongly about the case that for the first time she read one of her opinions from the bench, an option that the justices rarely exercise.

Roberts’ earlier phrasing was deceptively simple, but it can usefully be deconstructed by suggesting that the chief justice really meant that “the way to stop discrimination on the basis of race against people of color is to stop discriminating on the basis of race against white people.” For Roberts, discrimination is discrimination, and as a constitutional, legal, and policy matter, discrimination on the basis of race against white people is equivalent to discrimination on the basis of race against people of color. For Sotomayor, this belies “the unfortunate effects of centuries of racial discrimination” against people of color.

When I teach students about the history of constitutional law, I usually focus on the substantive legal arguments in Supreme Court decisions, but sometimes I encourage my students to focus on the tone, the emotion, the affect. I try to show my students that this can help us understand what is really going on in these decisions and it can help us consider the underlying issues and the political stakes. In thinking about how I might teach my students about the exchange between Roberts and Sotomayor in Schuette in the future, I find myself revisiting a Supreme Court case from the late nineteenth century, one that also featured more than just legal reasoning. The case, United States v. Stanley (1883), is well known to constitutional law experts.

Eight years earlier, in 1875, the U.S. Congress had passed the Civil Rights Act, which guaranteed that all persons within the United States, regardless of race or color, “shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.” Several individuals, including Mr. Stanley, were indicted under the Civil Rights Act on charges of denying African Americans equal access to inns, hotels, theaters, and railroad cars. The legal reasoning of the Supreme Court’s decision, which struck down the relevant sections of the Civil Rights Act as unconstitutional, focused on the fact that Congress did not have the power to interfere with individual and private forms of racial discrimination; the recently ratified Fourteenth Amendment, according to the Court, prohibited racial discrimination by the states, but not racial discrimination by private businesses and individuals.

When I teach Stanley, I work with my students to understand the legal reasoning used by the Supreme Court in this case, but I also encourage them to think about the tone. For this I focus on a particular passage in the majority opinion by Associate Justice Joseph Bradley. In a revealing passage, Bradley declared, “When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.”

This is a quite astonishing passage and I think it captures a large swath of white opinion that we have come to associate with “Redemption,” the large social and political process that ended and undermined what is generally referred to as “Reconstruction.” Bradley’s words suggested that ex-slaves had been advantaged by “beneficent legislation” and that for some unspecified period of time they had been “the special favorite of the laws.” Enough is enough, Bradley seemed to be saying. Having received special rights and benefits during the Civil War and Reconstruction and having been elevated beyond the ranks of ordinary white citizens, Bradley implied, ex-slaves would henceforth have to be satisfied with “mere” citizenship. The tone, it seems to me, was one of impatience. Stop your whining, Bradley seemed to be saying. Stop asking for special privileges. Stop turning to the federal government to address your problems.

I find this astonishing for many reasons, including the fact that slavery had only recently been abolished by the Thirteenth Amendment. African Americans, whether ex-slaves or not, continued to experience horrific levels of violence, discrimination, and disenfranchisement in the United States during this period, and yet the Supreme Court was ready to declare that African Americans had achieved full and equal citizenship.

I hear a similar type of impatience in the words of recent conservative commentators who condemn the “special rights” that supposedly come into play whenever civil rights laws, antidiscrimination policies, and affirmative action programs are enacted and enforced. And I hear it as well in the words used by Chief Justice Roberts in the Supreme Court’s recent affirmative action decisions. Some years ago Associate Justice Sandra Day O’Connor, in voting to uphold a limited affirmative action program at the University of Michigan Law School in Grutter v. Bollinger (2003), noted that twenty-five years earlier, in the Bakke decision (1978), Associate Justice Lewis Powell had upheld, in theory, the use of race in an affirmative action admissions program for higher education. O’Connor then declared, “We expect that 25 years from now, the use of racial preference will no longer be necessary to further the interest approved today.” Commentators have debated O’Connor’s position and her prediction, but the retired justice herself has said that she does not believe that there should be a finite deadline on race-conscious affirmative action programs.

The words of O’Connor, Roberts, and Sotomayor suggest that there is no Supreme Court monopoly on impatience when it comes to racial discrimination and affirmative action. But while O’Connor and Sotomayor, in very different ways, have expressed impatience about racial discrimination, Roberts has expressed impatience about affirmative action. In this, I believe his politics are closer to Justice Bradley’s, his nineteenth-century predecessor, than they are to the politics of Justices O’Connor and Sotomayor.

Marc Stein is author of Rethinking the Gay and Lesbian Movement (2012), Sexual Injustice: Supreme Court Decisions from Griswold to Roe (2010, 2013 pb), and City of Sisterly and Brotherly Loves (2000). He is professor of history and gender, sexuality, and women’s studies at York University in Toronto and in August will become the Jamie and Phyllis Pasker Professor of History at San Francisco State University.