Sotomayor dissent on Schuette v. BAMN a study in faulty logic

Supreme Court

Photo of Supreme Court: SCOTUS page, U.S. Government

Read Supreme Court Justice Sonia Sotomayor’s dissent in Schuette vs. BAMN if for no other reason than to be appalled at the extreme faulty logic she uses to argue, in essence, that certain races deserve preferential treatment.

That wasn’t the crux of the case—she veered off in a direction that had little to do with the matter at hand. Amy Howe, at the SCOTUS blog, summed up the main point of the case. Schuette vs. BAMN was not, as Justice Anthony Kennedy said, about “whether state universities can voluntarily consider race in their admissions process.” Scheutte vs. BAMN was instead about “whether voters can choose to prohibit state universities from considering race.” SCOTUS ruled that voters can choose to do so.

Sotomayor’s dissent attempts to build an argument to persuade us that this decision will burden racial minorities. The justice conflates race and ethnicity in her remarks, referencing “persistent racial inequality in society” and the fact “race matters for reasons that really are only skin deep…” She then segues into an example of a young man who as a teen “watches others tense up as he passes, no matter the neighborhood where he grew up.”

Sotomayor implodes her reasoning when she uses this example:

“Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?’”

The fictional young woman’s language or even her complexion is not necessarily an indication of race, but of ancestry or country of origin. For this justice appointed by President Barack Obama, race matters more than anything else. We shouldn’t be surprised.

Via the faulty logic she exhibits at every turn, Sotomayor described herself as a “wise Latina woman.” As a matter of fact, she routinely pointed to her own ancestry, ‘Latina’, in her speeches.

‘Latina’ is not a race despite the use of that term (and ‘hispanic’) in campaign speeches aimed at exploiting cultural or ethnic traits. ‘Latina’ is no more a race than ‘Southern’ is.

Some like me raised questions about Sotomayor’s obsession with her ethnicity after Obama announced his selection. Sen. Mitch McConnell’s (R-Ky.) assessment proved accurate with time after Sotomayor again brought up her ancestry when answering questions ahead of her confirmation:

“If it was a bad choice of words, it was a bad choice of words repeatedly … leading one to believe that it probably wasn’t just an isolated statement but a core belief,” he said.

Sotomayor’s most faulty logic in Schuette vs. BAMN comes when she writes about alumni of the University of Michigan having the ability to “advocate for an admissions policy that considers an applicant’s legacy status.” Sotomayor includes “policies that consider athleticism, geography, area of study, and so on.” She used as one model “a black Michigander who was denied the opportunity” to attend the university—obviously the black non-attendee couldn’t lobby for legacy treatment of children.

Sotomayor assumed the only people displaced by the legacy tactic are black. They aren’t simply because a great many white and Asian children also did not have parents who attended the school.

On athleticism, that is a skill just as mastering mathematics in a superior manner is a skill. On the consideration of geography, it’s hard to tell what she meant unless she is talking about the ‘Dream’ style amnesty Obama passed in the Executive Branch without benefit of Congress. Most of those students are presumed to be hispanic—not a race.

Sotomayor also displays an alarming lack of perspective when it comes to “this Nation’s regrettable history.” She emphasizes racial inequality. What she doesn’t do, and this is a perpetual habit for the left, is talk about racial inequality from a global standpoint.

The United States was not the only country to practice racial inequality and it certainly isn’t the last because that still persists in some forms in other countries today.

Our “regrettable history” can be  compared to far older countries. I’ve written about media and academics’ myopic approach to slavery and inequality before. The U.S. didn’t invent either but we practiced it for less time than many other countries and in my opinion we have attempted to compensate for it far more aggressively than most other countries. Consider [underscore added]:

“Dr.Akosua Perbi, as Fulbright-Scholar-in-Residence at Manchester College in Indiana, U.S.A., wrote a history of slavery , Slavery and the Slave Trade in pre-Colonial Africa. [2001] Perbi cited another scholar, Orlando Patterson:

‘There is nothing notably peculiar about the institution of slavery. It has existed from before the dawn of human history right down to the twentieth century, in the most primitive of human societies and in the most civilized. There is no region on earth that has not at some time harbored the institution. Probably there is no group of people whose ancestors were not at one time slaves or slave holders. Slavery was firmly established in all the great early centres of human civilization (Slavery and Social Death-A Comparative Study, U.S.A. 1982, p. vii).’”

In her opinion on Schuette, Sotomayor treads dangerous ground when she brings up the necessity of “vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing.”

Is the Supreme Court’s role to “police the political process”?

What I’d like SCOTUS to do is “police” the Constitution. If they did, at least 50 percent of federal laws would be dismantled because many of them violate the Constitution and far exceed limits on federal powers.

Sotomayor’s dissent reads like a political treatise rather than a careful examination of Schuette vs. BMAN. I made no secret of the fact I believed her unsuitable for appointment to the court and I still believe Obama’s choice on that matter was purely political. The quality of her latest dissent raises serious questions about her ability to view the law through an objective lens.

Michigan voters made a decision that actually benefits all races and that is perfectly aligned with the U.S. Constitution and other founding documents.

That Sotomayor attempted to racialize the case inappropriately and claim minorities are being disenfranchised in general (not just by the university) suggests her opinions warrant careful scrutiny. Her dissent reads more like a Democrat’s campaign speech than a thoughtful examination of the issue.

It’s also interesting to point out that a networking group Sotomayor belonged to, Belizean Grove—“a global constellation of influential women”would likely not admit a black male or for that matter, my Southern conservatarian self as a member. Perhaps she should do some selfie-style navel gazing on matters like that.

Finally, I would also note that Sotomayor’s analogy of the young black teen who sees “others tense up” even in the “neighborhood where he grew up” is not confined to a single race. Most of us have had experiences with people of other races who view us through the single lens of skin color.

Sotomayor has a single lens, a most “regrettable” quality in a justice who sits on the nation’s highest court.

To her credit, Sotomayor did finger the perpetrators of historical
racism when she wrote, ““Predictably, the Democratic Party specified that only white Democrats could participate in its primaries.” [pg. 57]

Related at Day on the Day
Why does Hollywood hide reality of history of slavery?

Sotomayor’s dissent at SCOTUS (slip opinion)
(Commentary by Kay B. Day/April 24, 2014)

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About Kay Day

Kay B. Day is a freelance writer who has published in national and international magazines and websites. The author of 3 books, her work is anthologized in textbooks and collections. She has won awards for poetry, nonfiction and fiction. Day is a member of the American Society of Journalists and Authors and the Authors Guild.
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2 Responses to Sotomayor dissent on Schuette v. BAMN a study in faulty logic

  1. John A. Streby says:

    Sotomayor’s willingness to position us all precipitously at the top of a very slippery slope is alarming. She proposes to substitute the will of an unelected judiciary over that of the voters, saying by implication that the voters can’t be trusted to make principled decisions. Has she really thought this through? I don’t think so, and let me explain why. Suppose that we flip the facts around, and assume that the voters of the mythical state of Kanoma have amended their constitution by referendum to not ban affirmative action, but REQUIRE it in college admissions, public employment and public contracting. Would that constitute a “re-ordering of the political process” that Sotomayor and Ginsburg condemn? In their view, probably not, because what is permissible when done to disadvantage the majority is forbidden when minorities are disadvantaged. Sotomayor, in her off-the-charts arrogance, fails to recognize that in a Democracy, policy decisions are generally left to the legislative branch of government; the judicial branch interprets and applies law, but doesn’t (or shouldn’t) have the effrontery to veto the public’s right of referendum on matters of policy, unless the equal protection violation is clear on its face. The straw man argument offered by BAMN, and endorsed by Sotomayor and Ginsburg, is so contrived that it has no legitimate place in any scholarly treatise. There is an Orwellian/Groucho Marxian quality about the Sotomayor manifesto, counterintuitive, presumptuous, and divorced from logic and common sense. How else can anyone describe a dissent whereby a constitutional amendment that, on its face, prohibits discrimination on the basis of race is held to discriminate on the basis of race? I’m likewise dumbstruck by the number of pundits who lionize Sotomayor with comparisons to the great dissents of Supreme Court justices in such thoroughly discredited decisions as Dred Scott, Plessy v. Ferguson, and Koramatsu. Of course, the implication there is that the Schuette v. BAMN ruling is evil and wrong, like those just mentioned. Finally, I find it repulsively patronizing for Sotomayor or anyone else to presume that blacks are a monolithic group, uniformly supportive of affirmative action. There are some blacks who resent the devaluation of their bona-fides as students, scholars, researchers or whatever as a consequence of affirmative action, to which their legitimate accomplishments are unfairly attributed. Inasmuch as Sonia Sotomayor obviously views herself as an advocate for minorities, over and above her role as arbiter of the law, perhaps she should resign from the Supreme Court and run for political office. Her dissent was largely political, and only remotely judicial in its “analysis.”

    • Kay Day says:

      Sotomayor was so obviously a political appointment. Her opinion on that case read like a college term paper. She is an embarrassment to the court.

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