Volokh Conspiracy: Does race really matter to Justice Sotomayor?

Posted By on October 3, 2014

Judging from her dissent in the Schuette case last term, the answer is, only when the concept can be manipulated to support her political agenda.

Heres an excerpt from my Cato Supreme Court Review article on that case.

Perhaps the most notable thing about Sotomayors opinion, however, is that, as Walter Olson puts it, she gerrymanders the word race itself a way convenient to her purposes, using it to include Hispanics (who, as official forms remind us, can be of any race), while breathing not one word about Asian-Americans..

Its bizarre to treat Hispanics but not Asiansas a racial group. Hispanic Americans (like Americans in general) canbe descended from Europeans, indigenous people, Africans, Asians, orany combination of those. The idea that a white American whose fatheris of German descent and whose mother is a Chilean immigrant of Italianancestry is in the same racial category as a Peruvian immigrant ofpure Incan descent and an Afro-Costa Rican immigrant should offendthe common sense of anyone who takes a moment to think about it.While there are many white Hispanicsnot just Hispanics with onlypartial Hispanic ancestry, but descendants of Spanish and Portugueseimmigrants, descendants of Europeans who settled in Latin America,Sephardic Jews, and so onthere are by definition no white Asians.

Justice Sotomayors opinion nevertheless ignores Asian Americansentirely for the obvious reason that their success in winning admissionto universities undermines the statistics she cites that show a sharpdecline in minority (not including Asian) enrollment in states thatban racial preferences.

Justice Sotomayors implicit view of race in Schuettethat it includes a group with a common linguistic but not racial heritage (Hispanics) but not Asiansalso undermines the following widely quoted language from her dissent:

And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young mans view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young womans sense of self when she states her hometown, and then is pressed, No, where are you really from?, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: I do not belong here.

Race matters is an odd rallying cry from a justice who for all intents and purposes treats Asian Americans as indistinct from whites. Nor does she provide a rationale for limiting the scope of her concerns for minority groups to African Americans and Hispanics. Are Hispanics and African Americans more likely to be asked where they are from or spoken to in a foreign language than are Asians? Do they suffer more slights, snickers, and silent judgments than Indian Sikhs wearing traditional headdresses, or, for that matter, Hasidic Jewish men with side-curls and fur hats, Mennonites, and Amish in traditional dress, or Arab women in hijabs? Unlike fair-skinned Hispanics who blend in with the general white population, Hasidim, Mennonites, and Arab Muslims are not eligible for affirmative action preferencesnor, in university admissions, are Sikhs or other Asians.

In fact, judging from her opinion, the breadth of Justice Sotomayors race matters concern is not some discernibly logical or empirical theory about for whom race or, for that matter, different appearance from the mainstream matters. Rather, being a racial minority is implicitly defined by an arbitrary combination of artificial census categories, university affirmative action admissions policies, and a sense of which minority groups, broadly construed, are not making it. The making it factor is itself highly problematic, given that some subgroups of the Asian category, not to mention some whites (as in Appalachia), have much worse socioeconomic indicators than some subgroups of Hispanics.

[I should point out that I'm not a fan of classifying humans by "race" to begin with, though I do have some sympathy for narrowly tailored affirmative action programs based on the unique history of certain American ethnic groups especially African Americans. But if one is going to start throwing around race per se as salient, and then argue for a particular interpretation of the Constitution because "race matters," one should at least make an attempt at intellectual coherence.]

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Volokh Conspiracy: Does race really matter to Justice Sotomayor?

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