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Behind every Supreme Court decision is a sociology of ordinary life. Opinions reveal the justices’ view of what’s what in the world, how people act and why things change.
Justices probably prefer that we focus on their legal analyses, but we can glean the sociology behind their assumptions. Last week, judicial world views spun into interplanetary conflict when the court voted to affirm Michigan’s vote to bar all consideration of race, gender, ethnicity, color or national origin in public decision-making, including in state college admissions.
The justices based their decision on a novel faith in the democratic process, which Justice Sonia Sotomayor spent 58 pages countering in a dissent that seemed to come from another universe.
Michigan voters had passed a constitutional amendment that effectively creates preferential treatment for a white majority — in the name of ending preferential treatment by race. The Supreme Court blessed that outcome in Schuette v. Coalition to Defend Affirmative Action, reinterpreting precedent meant to do the opposite and elevating politics over constitutional protections for racial minorities. Other states are now free to do the same.
The dangers of the decision’s sociology are as stark as its consequences for racial inequality. The world that Justice Anthony Kennedy described in his controlling opinion is not our world today. For all its colorblind tropes, Kennedy describes a world in which a majority of voters can and should decide what racial inequality means and what to do about it. As a result, more — not less — opportunity will be distributed by popular vote according to race.
This was not just an affirmative action case. The Michigan amendment is so broad that it questions the existence of racial inequality and eliminates traditional remedies for it. In 2006, Michigan’s political process demonstrated that if given the chance, white majorities — like all electoral majorities — will vote their perceived interests. Given the subject matter — opportunities to overcome longstanding racial inequality — minority voices and interests will be drowned in the political process.
The 14th Amendment was created to protect minorities from being excluded by the majority from public decision-making, especially involving issues of race. This is known as the “political-process doctrine.” But the decision in Schuette eviscerates it.
What the court majority overlooked (or ignored) is that inequality of results by race — for instance, college graduation rates — are inextricably connected to inequality of political access by race. Racial inequality is usually a product of racially inequitable processes, not the crude actions of avowed racists.
What if, for example, voting rules were printed only in English — a decision that would make the voting process unfair to non-English-speaking voters? We would eventually expect the interests of these voters to be hurt by the voting rules. This would produce measurable inequalities. So non-English-speaking minorities would need to be protected from being shut out of the political process.
This is why the Schuette decision will impose costs on inequality that we as a society can no longer afford to pay. Affirmative action may not be the most desirable path to opportunity, but it can be shaped — and was — in ways that are far better than the alternative.
Subjecting it to the political process dooms every minority who might benefit from it, because the majority would usually win. That’s racial inequity.
Inequity occurs in the form of unfair processes that produce unfair results. Eventually leading to grave racial inequality.
Considering how important rising income inequality has become, the Supreme Court majority’s odd sociology will risk doing double damage. It will exacerbate racial inequality while at the same time protecting a sense of white innocence about it.
Growing income inequality has led the news for quite some time, becoming a part of the nation’s conscious sociology. Each week come new articles about the lack of U.S. social mobility increasingly defeating college graduates’ expectations, a shrinking middle class, stubbornly high rates of unemployment, long-term joblessness, low wages, rising poverty. Many are now learning about the rippling effects of mass foreclosures and mass incarceration.
Inequality is even cited in U.S. rates of preventable death, lack of health insurance and vulnerability to environmental disaster, man-made and natural.
Every one of these inequalities is worse if you’re black or Latino. Every one. Even within rising income inequality generally, there is rising racial inequality.
These disparities did not just happen. Something caused them. General economic inequality occurs because of many market and legislative actions – for example, wages, tax policies and global competition — that enable some people to amass tremendous wealth, while a great many others struggle to make ends meet. People who live in places with fewer economic resources find fewer paths to upward mobility — thus more inequality.
Racial inequality is the extreme part of general inequality — a canary in a national economic coalmine. Racial minorities still live in the places with fewer economic resources. They face a world in which employment options, schools, safe housing and transportation access and choices tend to be weaker than in other communities.
Some of this inequality results from the cumulative effects of racist laws like Jim Crow segregation in the South and mortgage redlining in the North. Arrangements that started out as overt racism two or three generations ago can have lasting impact on the landscape of opportunity long after civil rights. Ghettoes are not built in a day.
Or inequality may continue because of current institutional decisions — like where a city builds a new stadium and how it’s financed, or whether to extend commuter rail to job-rich suburbs. In these examples, policy goals often reflect a mix of motives, few of them explicitly racial. The neighborhoods and towns that lose out economically in these decisions will become part of the landscape of unequal resources. And they are often disproportionately populated by racial minorities.
No matter how inequality occurs, beneath it all is a nagging sense of who is to blame for it.
Affirmative action is a response to inequality by ensuring access to resources like education that create opportunities long denied so more resources can take root. We can construct the programs in many ways, but the goal is always to balance the needs of people belonging to traditionally excluded groups with a sense of fairness to more included groups.
Yet the problem with affirmative action has always been that members of groups that traditionally gained at the expense of others reject the notion that they are responsible for what their forebears may have done. Or they insist that racial inequality is not the product of racial discrimination at all.
In other words, they plead innocence to racial inequality. They claim “reverse racism.” Affirmative action is a remedy that makes many of us feel unjustly accused.
The conservative Supreme Court justices promote this sociology by reshaping the notion of racial injury to minorities into something that is narrow, personal and invidious. Under this standard, only intentional racial injury — when an institution, for example, is caught deliberately mistreating minorities because of their identity — is recognized as requiring strict scrutiny.
Writing for the plurality, Kennedy made this worldview the linchpin of his decision. According to his sociology, there was simply no intentional injury that the minority advocates of affirmative action in Michigan could show. Kennedy views our time as largely free of invidious discrimination against minorities.
He is not entirely alone. Ours is no longer a society that wishes to revisit the racial past. However, that makes many of us blind to the racial present.
The pervasive idea of colorblindness has worked like a shield to silence talk about the racially disproportionate effects of long-standing institutional arrangements that continue to produce racial inequality. If some kind of racial inequality were going on, we sure can’t seem to talk about it. Only the crude acts of racists seem to count.
For example, if subprime lending targeting black middle-class homeowners helped to produce a massive loss of wealth through serial foreclosures in black neighborhoods, neither the practice of subprime targeting nor the racial segregation that increases the harm could be recognized as an injury under the court’s sociology. Since these common injuries were not caused by premeditated acts of overt discrimination, this kind of racial inequality has nothing to do with a remedy to support the access needed by these families’ children to attend a state college.
Yet this too is exactly the kind of inequality that affirmative action is used to overcome. Still it’s not surprising that a majority of white voters, fed a diet of colorblindness, believe that affirmative action somehow deprives them of equal protection under the law.
But subjecting racial inequality to the political process as Schuette did will protect the majority from more than affirmative action programs. It will defend an unstated interest in white innocence for racial inequality.
This theme runs throughout conservative ideology on race — that whites need protection from racial blame — though it’s hardly a consensus among white people themselves.
As the constitutional scholar Elise Boddie says, the Schuette case is ultimately a voting case. Just when racial inequality is mounting a major comeback, the court has invited white majorities to vote their innocence about racial inequality as a fact — and vote against affirmative action as a remedy for it. The justification is democracy, but democracy has known flaws.
Sotomayor’s dissent explained that faith in the political process certainly has its place in a democracy, but it must have limits for at least three reasons. First, racial inequality in the United States has always relied on a tyranny of the majority for its power.
Second, political outcomes are too easily manipulated by money. A great deal of money goes into the ballot initiatives that produced Proposal 2 in Michigan, Proposition 209 in California and those in several other states that passed affirmative action bans. The expense of these ballot campaigns suggests that minority interests might never be able to compete.
Third, faith in democracy should be rewarded by elections free of deception and confusion. Yet voter confusion over misleading phrasing has become a regular feature of ballot measures. In the sociology of the court majority, however, voting has a purity unseen in the real world.
The crowning injustice of the court’s decision last week is that it attempted to address the potential for equal-protection violations by creating a new equal-protection violation. If a majority of white voters of a state believe that affirmative action somehow deprives them of equal protection under the law, the way to fix it is not to ensure that they can vote to exclude race issues forever from the political debate.
As Georgetown law professor Girardeau Spann wrote on SCOTUSBLOG, “We know that the affirmative action programs banned by [Michigan’s amendment] constitute the least restrictive ways to advance the compelling governmental interest in promoting educational diversity. When adopting constitutional affirmative action programs, the political process promotes diversity by allocating resources to racial minorities in order to remedy the lingering effects of past discrimination. Proposal 2, however, takes those resources and redistributes them to the white majority. Proposal 2 is, therefore, an affirmative action program for whites.”
The Schuette decision is a mistake. At best it will produce a balkanized nation where some states abide by the constitutional standard while others vote against it. At worst it will promote a strange sociology in which many Americans remain blind to the racial dimensions of inequality and are encouraged to feel innocent about doing much to end it.
(David Dante Troutt is a law professor at Rutgers Law School-Newark, where he is director of the Center on Law in Metropolitan Equity.)
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