Breaking In: The Rise of Sonia Sotomayor (30 page)

“Think about this state that you’re representing,” Justice Kagan said. “It’s about a quarter black, but Alabama has no black statewide elected officials.”

Justice Sotomayor followed up, sharpening the focus on Shelby County: “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” In Shelby County alone, she asserted, Section 5 had prevented “240 discriminatory voting laws” from taking effect over the years. A telling example—though one not mentioned by either side at oral argument—involved the city of Calera. Over objections of the U.S. Justice Department, that Shelby County city had drawn a new voting district map plan that caused the sole African American on the city council to be voted out of office. After the Justice Department forced Calera to redraw the map, the councilman regained his seat.
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Rein did not challenge Sotomayor’s numbers, but he said that black voter registration and turnout was “very high” in Alabama. He also stressed that evidence on the ground was irrelevant when officials were lodging such a broad-based challenge to a law.

Justice Kennedy, sitting up in his chair and peering out through rimless glasses, said he was skeptical of a law that singled out the South for special federal regulation decades after the era of Jim Crow. “If Alabama … wants to acknowledge the wrongs of its past,” he asked Solicitor General Verrilli, defending the federal policy, “is it better off doing that [as an] independent sovereign or … under the trusteeship of the United States government?”

Verrilli said that many of the original places Congress targeted because of their deep-seated discrimination still needed oversight. “Of fundamental importance here is that that history remains relevant,” he responded to Kennedy. That history of racial bias in America and its remedies created the backdrop for the Alabama voting rights and Texas affirmative action cases.

It would take many more months before the nation saw how the Supreme Court resolved the dilemmas.

After the private vote in the
Fisher v. University of Texas at Austin
case in mid-October, Justice Ginsburg, the most senior of the dissenters, had assigned Sotomayor the task of writing the opinion for their position, favoring the university. Ginsburg knew well Sotomayor’s passion on the legal issue and her personal stake. She had heard Sotomayor’s stories about the kind of suspicion that greeted her acceptance to Princeton. She knew that Sotomayor had been driven to prove her place at the Ivy League campus and was now proving herself at the Supreme Court.

As Sotomayor drafted and began sending her opinion to colleagues’ chambers, they witnessed this intensity. To some, it seemed a dissenting opinion that only Sotomayor, with her Puerto Rican Bronx background, could write. They saw it as the rare instance when she was giving voice to her Latina identity in a legal opinion at the Court. Others compared the dissent to the attention-getting fiery statements that were the trademark of Justice Scalia.

And get attention it did.

Certainly the justices were accustomed to individual differences in cases revolving around race and ethnicity, but in this dispute some were anxious about how Sotomayor’s personal defense of affirmative action and indictment of the majority would ultimately play to the public. Justice Breyer was among those who felt strongly that a compromise should be brokered. Breyer had, in effect, adopted a compromise position with Justice O’Connor in the 2003 University of Michigan cases. Breyer, a 1994 Clinton appointee who usually was ready to uphold government racial policies, had voted to endorse the law school program but had joined O’Connor and the conservatives against the automatic benefit for black and Hispanic applicants in the undergraduate program.

Justice Sotomayor was ready to put herself on the line. She knew what affirmative action had meant for her and contended it has continuing value in American society. The details of her opinion might not be public for years, if ever. But those who read it said it was a fierce defense of affirmative action and a direct challenge to conservative justices preparing to undercut it.

Justice Kennedy, to whom the chief justice had assigned the majority opinion, did not close the door to working toward some sort of compromise that would draw as many justices as possible to an opinion. The conservatives themselves were split on how far they would go, and with Thomas advocating complete reversal of
Grutter
based on his view that no classifications tied to race were allowed under the Constitution’s guarantee of equality, Kennedy lacked the critical five votes for a single rationale. Kennedy also wanted to lower the temperature of the negotiations, intensified by Sotomayor’s dissenting rhetoric.

Stylistically, the two were opposites. Operating best in a buzz of activity, Sotomayor typed furiously on her computer, constantly calling out to aides. Kennedy, who often arrived before dawn, sought a quieter, less cluttered setting. He would often look out his office window, across the Court’s marble plaza, to an exquisite view of the Capitol. When he joined the Court in February 1988, he inherited the chambers of Lewis Powell, the centrist conservative who had cast the deciding vote and written the rationale of the 1978
Bakke
case. That personal history was not lost on Kennedy.

Further, although Kennedy had protested Justice O’Connor’s decision for the majority in
Grutter
, he knew it had been the law for a decade and was not ready to reverse it outright. There would be other cases on the issue and time enough to end the racial affirmative action that had proliferated on the nation’s campuses.

Justice Scalia, like Thomas, opposed any use of race in admissions, but he saw how the University of Texas dispute could not be used to reverse the University of Michigan decision in
Grutter v. Bollinger
. Lawyer Rein, on behalf of Abigail Fisher, had not directly asked for such a reversal. Rather, Rein had argued that the Court should strike down the University of Texas policy based on the standard of
Grutter
, albeit in a narrow reading of that case.

As the two ideological camps inched toward each other over the weeks, consensus eluded them. They were soon into April, and nearly all the cases from the October–December oral arguments had been resolved.

Tensions were escalating over the Shelby County, Alabama, case, too, but there the votes were clear-cut. There would be no shifting of sentiment or attempts to bridge ideological differences. Voting to invalidate the crucial formula underlying Section 5’s preclearance rules were Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. Voting to dissent from that view were Justices Ginsburg, Breyer, Sotomayor, and Kagan. Roberts and Ginsburg were writing the lead opinions for the dueling sides. “Our country has changed,” Roberts would eventually say in his opinion for the Court, “and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

In her dissent for the liberals, Justice Ginsburg stressed that the states covered by the Voting Rights Act preclearance rule still had the worst voting rights violations nationwide and that the majority’s position was turning its back on the vision of slain civil rights leader Martin Luther King, Jr. “The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama. ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion,” Ginsburg wrote, “that commitment has been disserved by” the majority’s decision.
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This case certainly showed the strains over race.

If the heated opinion Sotomayor was drafting in the University of Texas case had made it into the public eye, more fervent conflict would have captured America’s attention. It would have marked the first time she revealed, as a Supreme Court justice, her passionate views about race in America. She felt deeply that special measures still were needed to lift blacks, Latinos, and other minorities through higher education. As an initial matter, she preferred phrases such as “race-sensitive admissions policies” to the phrase “affirmative action.” She thought it important to explain the nuanced programs universities were then using, as opposed to past policies giving preferential treatment solely on the basis of race. She thought the Court was evading the dilemma of race in America and the reality she knew well, that people were still judged by the color of their skin.

But Sotomayor, who had come on so strongly at the start, became satisfied with Kennedy’s retreat in his succession of draft opinions.

Kennedy’s draft opinion for the Court now was saying that the University of Texas racial policy should return to lower courts for another review. He was writing that the appeals court’s first assessment was too deferential, that the appeals court could not merely take the university’s word that race-neutral approaches had failed to provide sufficient diversity in the entering class. He said that a lower court needed to undertake its own inquiry into whether a university could achieve sufficient diversity without using racial classifications and satisfy itself that no workable race-neutral alternatives would produce the same educational benefits of diversity.

Writing for a new majority of seven, Kennedy left intact the central holding of
Grutter
. Sotomayor dropped her dissenting statement. She, along with Breyer, signed the Kennedy opinion, too. Roberts and Alito would have signed Kennedy’s stronger statement but agreed to the compromise, as did Scalia. He additionally broke off, however, to write a separate opinion saying that he would have wanted the Court to reconsider
Grutter
but was deterred because challenger Abigail Fisher did not request it. Justice Thomas stuck to his guns and declared that the 2003 precedent should be overturned. “I would overrule
Grutter v. Bollinger
, and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause,” he wrote, adding his statement from the 2003
Grutter
case that “the Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provisions of burdens or benefits, it demeans us all.”
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Justice Ginsburg continued to dissent from the majority because she did not think the University of Texas case should be sent back for reconsideration. Even as Ginsburg protested the returning of the case to a lower court, she said that the Kennedy majority “rightly declines to cast off the equal protection framework settled ten years ago in
Grutter
.” She reiterated her sentiment that universities “need not be blind to the lingering effects of an overtly discriminatory past, the legacy of centuries of law-sanctioned inequality.” Ginsburg’s message to the public: The rules have not changed.

The Supreme Court decision was interpreted by supporters of affirmative action, including President Obama, as accepting the status quo. “The Court preserved the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body,” the Department of Education said in a letter to colleges and universities three months after the ruling. It advised them not to change any of the procedures in place from the 2003 court decision.
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Opponents of affirmative action, including lawyer Rein and activist Blum, countered that the University of Texas ruling required for the first time that administrators provide extensive data on why options that did not involve race had fallen short. They and others predicted that the decision would eventually spell the demise of affirmative action because, as the ruling played out in lower courts, schools would have the difficult burden of proving that before they turned to racial classifications, all other alternatives had failed.

Outside observers would quarrel over how much the legal landscape had shifted. But it was clear that conservative justices had retreated, and at least for the immediate future, the University of Texas policy and national practice of campus affirmative action would continue.

It had taken compromise and concessions by a number of justices. But it started with the woman who was the first Hispanic and who would make no apologies for what affirmative action had done for her.

*   *   *

She would not wield the same influence on her colleagues a year later. In April 2014, Justice Kennedy won a majority in an equally contentious but less far-reaching case testing a Michigan state ban on racial affirmative action, including at public universities.
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Now Sotomayor’s voice would be heard beyond the Court, and loudly. She issued a barbed fifty-eight-page dissent to Kennedy’s eighteen-page opinion upholding the Michigan law approved by voters. For the first time since President Obama appointed her in 2009, she also took the bold step of reading portions of the opinion from the bench. That occurs when dissenting justices want to draw special attention to their views. For nearly five years, Sotomayor had eschewed the practice, saying it seemed overly dramatic for the judicial setting.

Not this time. For twelve minutes, nearly as long as Kennedy had taken when he announced the Court’s majority views, she condemned the majority stance. She chided her colleagues for ignoring the needs of people on the margins and pointedly challenged the contention of Chief Justice Roberts and other conservatives that it was time to look beyond race. Her opinion echoed with her personal story: “Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” She was speaking generally, of course, but the words could have been taken from the text of her speeches, especially to student groups.