For the moment forget my snark two years ago when I riffed on the US Supreme Court and Obamacare. In that post, I parenthetically mentioned how I often confuse two prominent legal ‘talking heads,’ Jeffrey Toobin and Jonathan Turley — a couple of guys I keep inexplicably mixing up about as much as I do Javier Bardem and Jeffrey Dean Morgan.
But unlike my categorical preference for Bardem over Morgan, on any given day I might prefer one legal beagle over the other. Today, having managed to keep them apart in my head, there’s good reason for me to like Toobin. It’s because of his timely post at the New Yorker, “Chief Justice Roberts, Meet Bundy and Sterling.”
It was a post I wish I’d written because it resonated so completely with my views on the state of race in America today. As recently as last January, for example, I’d related my thoughts on how race still matters. That was prompted by the outing of racist ex-judge Richard Cebull and “One more add on a marinated post-racial America.”
Toobin was first to the door, though, masterfully dovetailing ever so neatly Los Angeles Clippers owner Donald Sterling and Nevada rancher Cliven Bundy and their respective racist viewpoints with the stirring stand-up-and-cheer 58-page dissent by Associate Justice Sonia Sotomayor last week in Schuette v. Coalition to Defend Affirmative Action. That case involved a 2006 Michigan ballot initiative imposing a state constitutional ban on “all sex and race-based preferences in public education, public employment, and public contracting.” By a plurality, the nation’s high court ruled 6-2 that voters could ban such considerations of race and sex through the ballot box. See Schuette v. BAMN – Supreme Court of the United States.
Justice Sotomayor wrote, in part, “While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures.”
And quoting from the dissent and referencing Chief Justice Roberts’ simplistic recipe for ending racial discrimination, Toobin opined: “Justice Sonia Sotomayor wrote about a country where the Bundys and Sterlings still hold considerable sway. Indeed, she went beyond the simple bigotry of the Bundys and Sterlings and found that more subtle wounds of racism still exist in this country. “Race matters,” she wrote, “because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Indeed, Sotomayor threw Roberts’s famous line back at him. She quoted him—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—and then wrote, “It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as not sufficient to resolve cases of this nature. While the enduring hope is that race should not matter, the reality is that too often it does. Racial discrimination … is not ancient history.”
I’d planned to blog about the decision and particularly Justice Sotomayor’s dissent. But no matter. As John Lennon presciently warned, “Life is what happens to you while you are busy making other plans.” So as it turns out, Toobin has instead captured it all so concisely and incisively that woulda-coulda-shoulda doesn’t matter. I refer you instead to his excellent post.