The Wonderful World Where Justices Dwell

By Charles Pierce, Esquire

23 April 14

he Day of Jubilee, declared by Chief Justice John Roberts in his decision gutting the Voting Rights Act, and celebrated in another venue with the McCutcheon decision, in which we learned that the only real form of political corruption is a direct quid pro quo, and that influence peddled is not influence at all, goes on and on at the Supreme Court, where today yet another decision was handed down that was not About Race, because nothing is ever About Race.

The Michigan initiative, known as Proposal 2, was a response to Grutter v. Bollinger, a 2003 Supreme Court decision that upheld the use of race as one factor among many in law school admissions to ensure educational diversity. Proposal 2, approved in 2006 by 58 percent of Michigan's voters, amended the state Constitution to prohibit discrimination or preferential treatment in public education, government contracting and public employment. Groups favoring affirmative action sued to block the part of the law concerning higher education.

The decision was written by Anthony Kennedy, who lives in that wonderful world where the law is a pure crystal stream running through green meadows, unsullied by the grit and silt that piles up in the actual lives of actual human beings. It must be a wonderful world in which Anthony Kennedy lives.

"This case is not about how the debate about racial preferences should be resolved," Justice Anthony M. Kennedy wrote in a controlling opinion joined by Chief Justice John G. Roberts Jr., and Justice Samuel A. Alito Jr. "It is about who may resolve it. There is no authority in the Constitution of the United States or in this court's precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters."

This is pure majoritarianism -- grotesquely so, if you consider the ongoing shenanigans at the state level regarding ballot access and voter suppression. There will be a real impact on real people -- just as there will be with the gutting of the Voting Rights Act and with the cascade of money that this Court has unleashed on the political system -- but what we are seeing, over and over again, is what happens when you combine the inebriate effect of American Exceptionalism in the philosophy of the law. Race does not exist as an issue in our country anymore because we have overcome it, because we are America and , therefore, Exceptional. Our elections are clean and honest, no matter how much money is sluicing through them, because we are America and, therefore, Exceptional. And if the people of a state wish to vote through a policy that deliberately harms racial minorities, they cannot be acting out of racial bigotry, because we are America, and race does not exist as an issue in our country any more because we are Execptional. And if the success of this policy at the polls is guaranteed because of the money that powers its passage, then the money cannot have been a factor because our elections are clean and honest because we are America and, therefore, Exceptional.

From the bench, Justice Sonia Sotomayor, who grew up in the real world and apparently still lives there, was having none of Kennedy's rainbows and unicorns. She went long on it, 58 pages worth, because she had a lot to say, and I think her dissent will stand with Brennan on censorship, or Harlan on Jim Crow. Reality requires an explanation these days, after all.

"We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitu­tion places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws. The Constitution does not protect racial minorities from political defeat, but neither does it give the majority free rein to erect selective barriers against racial minorities."

Chief Justice Roberts replied to Sotomayor by citing an argument not unfamiliar to anyone who listens to AM radio a lot.

But it is not "out of touch with reality" to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and-if so-that the preferences do more harm than good.

We can't be "reinforcing doubts" among the majority because that would be About Race, and nothing ever is About Race.

Anthony Kennedy's world sounds lovely indeed.