There’s a reason they call it “progressivism” — for years, the main legal question contested in affirmative-action cases, from Bakke to Grutter, was whether the state should be allowed to engage in racial discrimination. In the Michigan affirmative-action case decided today, Schuette v. Coalition to Defend Affirmative Action, the question was whether the state should be required to engage in racial discrimination. The progress, then, has followed the Left’s familiar ratchet-effect model, inching its way from “not forbidden” to “compulsory.” Indeed, as the Wall Street Journal put it, the question here was not whether the use of racial discrimination for putatively benevolent purposes is constitutional but whether states “may end racial preferences without violating the U.S. Constitution.”


The Court came to the correct conclusion, but both Justice Anthony Kennedy’s opinion and Justice Sonia Sotomayor’s dissent suggest very strongly that there is trouble afoot on our highest bench.

In a perfectly Orwellian dissenting opinion, which she read dramatically from the bench, Justice Sotomayor argued that the decision of the people of Michigan to end racial discrimination is itself an instance of racial discrimination and that the only way to mitigate such racial discrimination is through the mandatory maintenance of racial discrimination. In this opinion she was joined by Justice Ginsburg, with Justice Kagan recusing herself from the case. Justice Sotomayor argued that Michigan’s Proposal 2, which mandates race-neutral state policies, is the sort of legislation used to “oppress minority groups.” By outlawing racial discrimination, she argued, “a majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.”

Justice Sotomayor is here arguing in effect that if a constitutional referendum doesn’t go the NAACP’s way, then its effects are invalid. This is not an exaggeration: Justice Soyomayor argues explicitly that Michigan’s voters would have been within their rights to, for example, lobby university authorities to adopt race-neutral admissions standards but that by adopting a constitutional amendment insisting on race neutrality, thereby transferring the decision from the education bureaucrats to the people themselves and their constitution, they “changed the rules in the middle of the game.” Her opinion is legally illiterate and logically indefensible, and the still-young career of this self-described “wise Latina” on the Supreme Court already offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law. Justice Sotomayor has revealed herself as a naked and bare-knuckled political activist with barely even a pretense of attending to the law, and the years she has left to subvert the law will be a generation-long reminder of the violence the Obama administration has done to our constitutional order.


Justice Kennedy’s issue-evading opinion for the Court’s plurality, barely more confidence-inspiring, argued that the case was “not about the constitutionality, or the merits, of race-conscious admissions policies in higher education” but instead simply “whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admission.” An exasperated Justice Scalia pointed out in his concurrence that implicit assumptions about “disparate impact” — the notion that equal protection under the law violates equal protection under the law if minorities do worse relative to whites under a single, race-neutral standard — run counter both to the text of the Constitution and to the Court’s longstanding jurisprudence.



As a practical matter, the fact that non-white students do relatively poorly under race-neutral admissions standards at our public universities is an indictment mainly of our K–12 education system and of the cultural anarchy that has imposed especially high costs on the children of black and Latino families. It is not an indictment of race-neutral standards. Unable or unwilling to do a better job of preparing black and Latino students for college in the public institutions controlled by its most reliable footsoldiers, the Left insists on anathematizing the very standards under which the incompetence and negligence of our government-run schools, the very model of progressivism, are revealed. If that takes a bit of doublespeak — non-discrimination is discrimination — it wouldn’t be the first time the Left has relied on it.

The Court came to the right decision, but its fractured conclusions and the rigorous political activism of its left wing are alarming.