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The National Review, Justice Sonia Sotomayor, and Affirmative Action

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In a stunningly insulting editorial, the National Review attacked Supreme Court Justice Sonia Sotomayor for her opinion dissenting from the Supreme Court's recent decision upholding the constitutionality of a state's ban on affirmative action. The National Review decried Sotomayor's opinion as "Orwellian," as "legally illiterate and logically indefensible," and as "a case study in . . . moral and legal corrosion." It accused her of "elevating ethnic-identity politics over the law" and of being "a naked and bare-knuckled political activist with barely even a pretense of attending to the law," and it mocked her as a "self-described 'wise Latina.'"

Of course, the National Review has every right under the First Amendment to say all of these things, and I would defend to the death, in Voltaire's words, its right to say them. But that does not make them any less offensive -- or ignorant of the law.

What was the issue in Schuette v. Coalition to Defend Affirmative Action? In 2003, the Supreme Court, in Grutter v. Bollinger, held that the University of Michigan could constitutionally take race into account in its admissions policies in order to increase the diversity of its student body if it did so in a careful and precise manner. Thereafter, the state of Michigan enacted Proposal 2, which prohibited all public educational institutions in the state from using preferences based on race, gender, or national origin in their admissions policies.

The question in Schuette was whether Proposal 2 violated the Equal Protection Clause of the United States Constitution. The argument in defense of Proposal 2 was straightforward: Nothing in the Constitution requires a state to use affirmative action; therefore, the University of Michigan could constitutionally choose not to use affirmative action; therefore, the state of Michigan could constitutionally prohibit the University of Michigan from using affirmative action. That seems simple enough.

But in a series of decisions in the 1960s, 1970s, and 1980s, the Supreme Court held that when a state places special barriers in the way of racial minorities receiving equal treatment, it violates the Equal Protection Clause. To give a simple example, suppose a city enacts a law prohibiting private discrimination on the basis of race, religion, gender, or national origin. Now, suppose the state enacts a law prohibiting any city from prohibiting private discrimination on the basis of race. In effect, the state law allows cities to forbid private discrimination on the basis of religion, gender, and national origin, but not on the basis of race.

Although neither the city nor the state is under any constitutional obligation to have laws prohibiting private discrimination on the basis of race, the Supreme Court in those earlier decisions held that, by making it more difficult for racial minorities to obtain legal protection against private discrimination than other groups in society, the state law violated the Equal Protection Clause. That is, although Jews, Italian-Americans, and women had the freedom to persuade cities to pass ordinances protecting them against discrimination, African-Americans were denied the same freedom. For African-Americans to get a city to pass such an ordinance, they would first have to persuade the state itself to change its law. The Court in these earlier decisions held that this inequality violated the American Constitution.

Michigan's Proposal 2 created a similar situation. Before Proposal 2 was enacted, the University of Michigan was free to adopt affirmative actions programs in the admissions process for African-Americans, football players, violinists, the children of alumni, in-state residents, residents of rural communities, history majors, etc. After Proposal 2, the University of Michigan could adopt affirmative action programs for football players, violinists, the children of alumni, in-state residents, residents of rural communities, and history majors, but not for African-Americans.

Based on the earlier precedents, a pretty good case could be made for the conclusion that the issue in Schuette is properly controlled by the earlier decisions. That was essentially Justice Sotomayor's argument. Moreover, in a concurring opinion, Justices Antonin Scalia and Clarence Thomas agreed that the prior decisions controlled, which is why they argued that, in order to uphold the Michigan law, the earlier precedents should be overruled. In his plurality opinion, Justice Kennedy tried -- not very convincingly -- to distinguish the earlier decisions.

In short, Justice Sotomayor's opinion was in no way radical. To the contrary, it was a fairly straightforward application of the Court's traditional approach to this sort of issue. For the National Review to characterize it as "Orwellian," as "legally illiterate," as "logically indefensible," as "a case study in . . . moral and legal corrosion," and as elevating "ethnic-identity politics over the law," is nothing short of ignorant.

In fact, the specific legal issue posed in these cases is a difficult one. It has vexed the members of the Supreme Court for more than four decades now, and generations of justices have quite reasonably disagreed about how best to think about this problem. The only way the National Review can characterize this issue as simple and straightforward is by blinding itself to the legitimate complexites of a genuinely complicated legal question and simply assuming that it own political preferences must self-evidently be what the Constitution commands.