By Guest Contributor Thomas L. Mariadason
The iconography of blind justice is ubiquitous. Expressionless Greco-Roman goddesses stridently clutching scales adorn courtrooms all across our country. At this point, the imagery is hardly eye-catching, but its familiarity helps numb our doubts about the nature of judicial objectivity. Sightlessness, after all, is the supreme analogue of impartiality.
One small catch: the metaphor of blindness—an ableist trope that frequently undermines itself —also suggests the inability to perceive the realities before us.
In a heavyweight dissent to the flyweight opinion in Schuette v. BAMN, Justice Sonia Sotomayor knocked the shut-eyed obliviousness out of her Supreme Court benchmates, exhorting them “to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
I’m with Kweli on this one: “Right about now I’m feeling very grateful we have a Puerto Rican from the Bronx on the Supreme Court.”
Schuette (pronounced shoo-tee) centers on Michigan’s Prop 2, a 2006 ballot initiative that amended the state’s constitution to ban consideration of race in college admissions. It did not—and don’t get this twisted—address affirmative action. The 2013 Fisher decision upheld race-conscious admissions as valid under our federal constitution, and states and their universities can still choose to diversify their student bodies with a sound race-conscious policy.
The 6-2 decision handed down two weeks ago posed a different question: what if that choice is taken away from universities? What happens when proponents of racial diversity have to undertake the expensive and laborious task of repealing a state constitutional amendment just to advocate for their interests, while those who advocate for—as Rutgers law professor Elise Boddie aptly put it—“other kinds of affirmative action” (legacy status, geographic preferences, or athletic scholarships) do not?
In a telling moment, Justice Anthony Kennedy, author of the Court’s decision, answered plainly: “This case is not about how the debate on racial preferences should be resolved. It is about who may resolve it.” For a measure that passed amidst severe allegations of fraud against minority voters, and, by and large, along racial lines, the “who” vested with that resolving authority couldn’t be clearer to Justice Sotomayor.
Of course, Sonia from the Bronxdale Projects isn’t the first to beef with this kind of “colorblindness.” Writers and activists regularly take adherents of pure race neutrality to task for erasing history, ignoring the present reality, and casually re-entrenching the disparities of ole. Inevitably that wave of dissension comes smack against MLK’s marbleized “Dream,” stripped of his brutal candor on racial disparity in American society. To wit, few words are so frequently used to justify racial blindfolding in our discourse than “not…by the color of their skin, but by the content of their character.”
What makes Justice Sotomayor’s blistering critique of colorblindness notable is its location in our jurisprudence. Again, Schuette is not about the constitutionality of affirmative action. It is, however, a case about race and racism, and about the role of our judiciary in limiting the self-interest of dominant majorities. That’s why Sotomayor’s terrific exposition on the history of white majoritarian suppression is so invaluable.
“At first, the majority acted with an open, invidious purpose,” she writes.
It’s a bare and epic capsule of America’s original sin that, split open, holds all the truth and historicism needed to unravel what she deems a “long and lamentable record” of American racism. It is a record of “restructuring” political processes to suffocate minority (and largely Black) political, social and economic growth.
When the Fifteenth Amendment guaranteed former slaves the right to vote, Sotomayor notes, states replaced “outright bans…with literacy tests, good character requirements, poll taxes and gerrymandering.” When Little Rock’s school board was ordered to desegregate, Arkansas quickly enacted laws stripping local districts of their decision-making authority. Through these examples and the cases at the heart of Schuette’s legal doctrine—Hunter (Akron, Ohio’s attempt to prevent fair housing ordinances) and Seattle (Washington state’s attempt to prohibit racially integrative busing)—Sotomayor pinpoints the Court’s inescapable responsibility as intervener of last resort, tasked with protecting “the minority’s right to participate on equal terms in the political process.”
In other words, the game has always been rigged. With each step forward in our nation’s civil rights struggle, white, majoritarian interests have changed the rules mid-game, and found sufficient support among the body politic to implement that repression. Courts, particularly the Supremes, have remained the lone institutional force capable of deterring the tyranny of the white majority.
It’s a frank appraisal that contrasts starkly with the narrow approach of the justices in Schuette’s plurality. (All white men, save one.) To them, suggesting that whites will bogart the political process for their own benefit (why I never!) ignores the possibility that Blacks and other minorities might find common interest in those objectives (racist!). I mean, it wasn’t just whites who supported Prop 2 (or all non-whites who opposed it) right? Right?
I’ve got two words for you, says our Nuyorican sister: race matters.
These are words rarely tolerated in a society that equates ignoring race with equal treatment. A society that performs astonishment at the inane remarks of a curmudgeonly racist, but casually ignores the broad impact of his slumlord policies for years. One in which racism matters only when it’s vileness can be easily externalized and shunned for the extremes it once represented: slavery, rape, genocide.
Perhaps we all know that. We are simply too fearful to remove the blindfold and see that the villainy of racism isn’t perpetuated by caricatures spewing invidious comments from their frothy jaws. Rather, it is through the majoritarian political process that much of America’s racial crimes have and continue to be perpetrated. Votes to cut public school funding in inner cities. Votes to build more prisons and incarcerate minority youth. Votes for voter IDs. These are the hallmarks of institutional racism that indict the majority’s collective responsibility in the ever longer “lamentable record.” Something that cannot be quickly expunged or “banned for life” simply by casting votes for a more diverse bevy of politicians. Only a judiciary with eyes open to America’s racial realities—cognizant of its special role as a safeguard in the majoritarian political process—can prevent that process from continuing to run roughshod over minority interests.
‘Til then (or until 2042 or sooner perhaps), we have Sonia and her scissors of dissent, trying to clip the blindfold from the eyes of American justice.
Thomas L. Mariadason is a civil rights attorney, non-fiction writer, and activist from Queens and Staten Island, New York City, by way of Sri Lanka (there’s an island theme here). His work and writing focus on issues of education, criminal justice reform, and immigrant empowerment (and a racial justice one here). You can follow him at @arcbending.