How The Supreme Court Ruling On Affirmative Action Proves That, Sometimes, The Constitution Isn't Good Enough
On Tuesday, the Supreme Court voted in a historic 6-2 decision to allow state voters to ban affirmative action in public university admissions. The ruling in Schuette v. Coalition to Defend Affirmative Action marks the first time that the SCOTUS has actively decided against race-based admissions considerations. The case has drawn considerable attention and criticism — and revealed, to some, that the United States Constitution can't always be depended on to decide matters that go beyond the letter of the law.
Supreme Court justices are required to make their decisions based on the highest law of the land: Those spelled out in the Constitution. However, the way in which the Constitution is interpreted has long been debated, and the multiplicity of these different interpretations is evidenced in non-unanimous SCOTUS decisions. In a typical year, there is a relatively even divide between unanimous and non-unanimous decisions (though in 2013, the justices were more harmonious than usual).
It seems difficult to accept a decision that is based on a centuries-old document that sometimes divides more than it unites, and these difficulties become particularly personal in cases like Schuette v. Coalition. In such cases, it almost seems as though using the Constitution is, for lack of a better word, unfair. For example, in Korematsu v. United States, the Supreme Court ruled that the internment of Japanese-Americans was constitutional in situations of public necessity. The ruling has never been overturned.
While the Constitution should transcend time, it's also a document that does not take into consideration current events. Indeed, in its impartiality, the Constitution is ahistorical. And it's precisely this virtue and curse of the Constitution that makes it a difficult document upon which to base decisions that seem inherently tied to social norms and challenges.
In the case of affirmative action, Justice Sonia Sotomayor wrote: "we cannot wish away, rather than confront, the racial inequality that exists in our society, in her 58-page dissent. And although Justice Sotomayor references the Constitution and the constitutionality of the decision, saying that the decision against affirmative action is effectively allowing voters to "do what our Constitution forbids," the most powerful part of her dissent is not rooted in the legality of the issue.
Rather, her argument is at its strongest when she steps away from the Constitution, and instead considers the day-to-day effects and examples of the presence of race and racism in the United States.
What Justice Sotomayor realizes is, as she writes, "race matters for reasons that are only really skin deep."
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 because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here."
And these are the issues that the Constitution cannot address. Indeed, the Supreme Court's decision, as infuriating as it may be for some, does not seem like so much a decision as an evasion of debating the topic of race. In fact, Chief Justice John Roberts wrote in the majority opinion:
This case is not about how the debate about racial preferences should be resolved. 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.
The Roberts court essentially passed on dealing with a heavily and constantly contested issue, admitting that the Constitution is silent on how to deal with a problem that is so tightly entangled with racism and a history of minority oppression. And this is because there are moments when the Constitution cannot be used as the final arbiter on certain decisions; there are issues that cannot be encapsulated by logic, courtroom arguments, or data.
Instead, there are problems that require field work, that require observational evidence, and that require adopting a different, potentially uncomfortable perspective. Problems like racism cannot always be explained, but they can be felt, seen, and heard on a day-to-day basis, even in the 21st century.
And when it comes to problems like these, the Constitution — a document written by, voted on by, and signed by white men in the 18th century — cannot always be relied upon to make the "right" choice. Legality and justice do not always go hand in hand, and in the case of Schuett v. Coalition, we were reminded of that once again.