Sotomayor's New Excuse for Affirmative Action

During her Senate confirmation hearings yesterday, Judge Sonia Sotomayor invented an entirely new justification for affirmative action.

During her Senate confirmation hearings yesterday, Judge Sonia Sotomayor invented an entirely new justification for affirmative action.  In response to a question from Senator Herb Kohl (D-WI), Sotomayor argued that the Fourteenth Amendment’s Equal Protection Clause required affirmative action:

The Constitution promotes and requires the equal protection of law of all citizens in its Fourteenth Amendment. To ensure that protection, there are situations in which race in some form must be considered; the courts have recognized that. Equality requires effort, and so there are some situations in which some form of race has been recognized by the court. (Emphasis mine.)

To understand just how far Sotomayor veered from the Court’s longtime interpretation of the Fourteenth Amendment as it pertains to affirmative action, a brief history is in order. Historically, affirmative action has been challenged before the Supreme Court on the grounds that it violates the Fourteenth Amendment’s Equal Protection Clause.  In two landmark cases – em>Bakke< (1978) and em>Bollinger v. Grutter< (2003) – well qualified white students who had been rejected from graduate schools argued (convincingly, according to the data) that they would have been admitted under affirmative action had they been minorities.  In short, these white students argued that they had been treated unequally on the basis of their race, and that this treatment was unconstitutional. Though the Court ultimately rejected their claims, it provided strict guidelines as to the means and ends that affirmative action programs must satisfy.  In this vein, the Court asserted that “the attainment of a diverse student body” was the only constitutional justification for affirmative action.  It further held that admissions committees could use race as only “one of many factors,” since race comprises only one component of intellectual diversity.  Meanwhile, in both cases, the Court rejected one of the most common, hackneyed defenses of affirmative action policies – namely, the notion that racial preference can be employed to “remedy disadvantages cast on minorities by past racial prejudice.”  As Justice Powell stated in his Bakke decision, “there is a measure of inequity in forcing innocent persons … to bear the burdens of redressing grievances not of their making.” Well, apparently someone forgot to tell Sotomayor.  Of course, we already knew from her infamous and often-repeated “wise Latina” remark that Sotomayor believes in the link between an individual’s ethnicity and intellectual outlook – a premise that the Court, regrettably, has long accepted in upholding the constitutionality of affirmative action programs.  But the likely future Supreme Court justice further believes that promoting equality as per the Fourteenth Amendment’s Equal Protection Clause requires the privileging of minority students to ensure their “protection” – which suggests that race should be prioritized in admissions decision, as opposed to being considered as “one of many factors.” Indeed, this is a startling, though subtle, constitutional invention.  And thanks to the Democrats’ supermajority in the Senate, it is one with which we will soon have to live.