The Volokh Conspiracy

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Does race really "matter" to Justice Sotomayor?


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."

Here's an excerpt from my Cato Supreme Court Review article on that case.

Perhaps the most notable thing about Sotomayor's 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."….

It's bizarre to treat Hispanics but not Asians as a racial group. Hispanic Americans (like Americans in general) can be descended from Europeans, indigenous people, Africans, Asians, or any combination of those. The idea that a white American whose father is of German descent and whose mother is a Chilean immigrant of Italian ancestry is in the same "racial" category as a Peruvian immigrant of pure Incan descent and an Afro-Costa Rican immigrant should offend the common sense of anyone who takes a moment to think about it…. While there are many white Hispanics-not just Hispanics with only partial Hispanic ancestry, but descendants of Spanish and Portuguese immigrants, descendants of Europeans who settled in Latin America, Sephardic Jews, and so on-there are by definition no "white Asians."

Justice Sotomayor's opinion nevertheless ignores Asian Americans entirely for the obvious reason that their success in winning admission to universities undermines the statistics she cites that show a sharp decline in "minority" (not including Asian) enrollment in states that ban racial preferences….

Justice Sotomayor's implicit view of race in Schuette-that it includes a group with a common linguistic but not racial heritage (Hispanics) but not Asians-also 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 man's 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 woman's 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 preferences-nor, in university admissions, are Sikhs or other Asians.

In fact, judging from her opinion, the breadth of Justice Sotomayor's "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.]