The Justice’s dissent in the Michigan college admissions case was courageous, as the attorney general said, because she dared to identify an enduring remnant of “white supremacy” still clinging to American democracy. Of course, the Justice did not use that odious phrase. She would have been accused of sensationalizing the issue. But her Republican colleagues in the majority on the Supreme Court must have felt the sting of her accusation.
The Michigan case, Sonia Sotomayor explained, is simply the latest example of an old and familiar abuse of the Constitution. The white majority used its power to change the rules in the middle of the game and deprive racial minorities of a fair shot at acquiring their just political rights.
“While our Constitution does not guarantee minority groups victory in the political process,” she wrote, “it does guarantee them meaningful and equal access to the process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals.”
Chief Justice Roberts harrumphed in reply. Justice Scalia ridiculed her reasoning. Yet I have a hunch Sotomayor’s dissent will be read and taught in classrooms long after the names Roberts, Alito, Scalia, Thomas and Kennedy have faded from historical memory.
At issue was the state-wide referendum at which Michigan voters amended their state constitution to forbid consideration of “race-sensitive issues” in the admission policies at Michigan’s public universities. Black enrollment predictably plummeted afterwards. The majority rules, people declared. In this case, the Supreme Court agreed. Sotomayor reminded them of the long, brutal history of American apartheid when the Supreme Court was compelled, again and again, to set aside “majority rules” in order to secure the constitutional rights of minorities.
At first, she said, states acted with an open contempt for the Fifteenth Amendment, adopted after the Civil War to grant liberated slaves the rights of citizens. “Certain states shut racial minorities out of the political process altogether by withholding the right to vote,” Sotomayor recalled. “This Court intervened to preserve that right. The majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes and gerrymandering.”
Fraud, intimidation and violence were standard tactics that continued in the twentieth century. Texas adopted a law in 1923 that prevented racial minorities from voting in party primaries. When the Supreme Court declared that law unconstitutional, Texas passed another law that gave the parties the right to decide who was eligible to vote (the Democratic party said only white Democrats). Oklahoma required a literacy test but exempted anyone who whose grandfathers had been eligible to vote before 1866 (naturally, no African-Americans needed apply). Other states built legal barriers to prevent blacks from winning election to local offices—sometimes abolishing the offices or having the governor, not voters, appoint the office holders. School desegregation spawned new tactics of resistance (abolishing public schools in Virginia or an entire county in Alabama).