Sotomayor and Race in America

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The point is simple – clichéd, even.  But this simple point is so often denied in the United States of 2009.  The point is that race matters.  More specifically, race matters in how we interpret the Constitution of the United States. Debates over the constitution, especially at the Supreme Court, often willfully ignore or obscure the living and continued significance of race and racism.  The racial category you belong to plays a significant part in your life, if you’re an American, but American legal doctrine over the last several decades has refused to accept this fact.

Much as they did during the 1800s, today’s American courts allow entrenched racial discrimination to continue.  Throughout the 19th century and into the 20th, the courts used openly racist thinking to enforce policies like slavery, segregation, and whites-only citizenship.  Today, the courts use colorblindness to brush aside the reality of race and racism aside.  They overturn and restrict race-conscious policies designed to help alleviate racism faced exclusively by people who are identified as racial and ethnic minorities.  The courts can and should consider the impact of race when it deals with cases like voting rights, sentencing for drug use, law enforcement strategies that roundup random Muslim and Middle Eastern Americans, and the legality of practices and policies that drove nonwhite families into needlessly expensive “subprime” mortgages.  But instead, legal scholars (including a majority of the Supreme Court Justices) regularly disagree with the need even to recognize the mere existence of socially constructed race.

It’s not a coincidence that Judge Sonia Sotomayor’s nomination to the Supreme Court has already become contentious on the issue of race.  Sotomayor’s views on race and racism are becoming an object of public debate, thanks to coverage by national media (and thanks to well-publicized and ridiculous accusations that Sotomayor is herself “racist”).  Her rulings during her illustrious career show that while she’s hardly a radical, Sotomayor does favor a reality-based judiciary that understands and considers the impact of race and racism.  Because of this (and in part because she is Latina), she has already faced more questions about race than any other nominee to sit on the Supreme Court than anyone else in quite a long time.  And she hasn’t even sat for confirmation hearings yet.

Before Judge Sotomayor arrives on Capitol Hill for confirmation hearings, I’d like to take a moment to consider why legal scholars argue against recognizing the existence of race in America.  And then let’s consider how the next decade in legal thought might be influenced, thanks to Sotomayor’s presence on the Court.

The legal argument for denying reality – for denying the existence of race – is rooted in the colorblindness doctrine.  My understanding is that the basic idea behind colorblindness is: only by ignoring race can we truly transcend it.  You see, if we keep talking about race, if we acknowledge it, then we allow the race concept to persist.  So, what we should do is pretend that race isn’t there.  If we adjust our thinking to a colorblind world, then in time, reality will catch up with our thinking.  This kind of thinking has been proven wrong again and again, most thoroughly by Eduardo Bonilla-Silva.

The colorblindness perspective didn’t come out of nowhere.  In legal circles, it gained traction in the 1970’s, during the reaction to the Civil Rights Movement.  The Civil Rights Movement succeeded in abolishing race conscious polices that were used to inflict forced separate but equal – segregation that was anything but equal.  The claim of the “integrationists,” as the bus boycotters the sit-in protestors are called by many legal scholars, was essentially to end separate but equal by asserting the right to be treated like everyone else.  The protestors asked for a removal of race from the laws, they asked for colorblindness, so that anyone who boarded the bus could have a seat in the front.  But after the Civil Rights Movement, this colorblind concept was twisted to support the legal basis for ignoring racist inequality.

Former Chief Justice William Rehnquist wrote, in 1952, “…I think Plessy v. Ferguson was right and should be reaffirmed.”  Plessy (1896) was the decision which created the “separate but equal” doctrine.  The logical foundation of Plessy held that there was no inherent or automatic difference in quality of public service just because of racial segregation.  Segregation therefore wasn’t ruled to be a problem under the 14th Amendment, which guarantees equal treatment to each citizen regardless of race.  In other words, Plessy said that because we can imagine a world where white and nonwhite students have separate and equal educations, there is no reason to say that segregation is unconstitutional the Jim Crow rules separating white and black students in public schools.  The actual lived reality of the students, in the court’s mind, was irrelevant.  Any inequality in reality could be dealt with in time, without the need to resort to overruling segregationist policies.  Plessy allowed the Jim Crow era to proceed, with its obviously and disastrously harmful inequality in everything from education to health to transportation for non white Americans.  It’s important to note that in Plessy, the court was in denial of reality – the court refused to accept the existence of a class of people (nonwhites) that were experiencing inherently discriminatory treatment.

To move past the denials of Plessy, the court would have to be convinced to stop talking about abstract legal theory and start talking about reality.  It wasn’t until 1954 and Brown v. Board of Education that the colorblind logic of Rehnquist and his allies on the right were rejected by the Supreme Court.  The court acknowledged the obvious reality that nonwhite students were not receiving an equal education in the segregated schools across the South.  The court’s opinion held that there were unrecognized consequences of racism so demonstrably harmful (the court referenced a study where black children preferred white dolls to play with) that the court could not just rely on abstract theory as it did in Plessy.  In this way, Brown was groundbreaking not just because it ordered the racial integration of schools.  Brown was extraordinary because the decision said that the reality of racism could not be ignored, even if there is a theoretical, imaginary world where segregation could be equal.  The reality was that segregation was not equal.  Hence, the court now decided, there was a violation of the 14th Amendment.

With that basic realization – that race exists as a social force and causes real harms to groups of people – the state was able to craft responses that could deal with the reality of racism.  This new legal foundation allowed for the passage of the Civil Rights Acts of 1964 and 1968, making discrimination in the workplace and in housing illegal.  It allowed passage of the Voting Rights Act of 1965, which represented the first effective law that allowed many black southerners to vote.  Brown’s recognition of reality allowed the establishment of a wide range of policies that take racial understandings into account, from hate crimes laws, equal housing regulations, and affirmative action in schools and the private sector.  All of these effective (albeit imperfect and insufficient) policies would be impossible if the law refused to take the existence of socially defined race into account.

So, this vast array of practices and policies were put in place to operate in the new, reality-based legal paradigm set up by Brown, but by the 1970s the Supreme Court changed dramatically.  Richard Nixon replaced retiring Chief Justice Earl Warren, the architect of the Brown decision, with the far more conservative (“strict constructionist”) Warren E. Burger.  Later, Nixon successfully appointed three more justices (including Plessy supporter William Rehnquist) – for a total of four Nixon justices – meaning that before he resigned in disgrace, Nixon was able to fundamentally reshape the Supreme Court for a generation.  Right away, the new court began to walk back some of the reasoning seen in Brown and similar cases.

By the late 1970s, the court had almost completely returned to the Plessy v. Ferguson colorblindness logic to deny reality and allow racial segregation to continue.  In Milliken v. Bradley (1979), the court decided that the reality of segregation in Detroit-area public schools was irrelevant.  Suburban Detroit public schools were mostly white, while Detroit city public schools were nearly all black.  Suburban schools also offered a better quality of education because of the additional resources available to them.  The district and appeals courts held that the state could institute a bussing solution that bussed students between the city and the suburbs to achieve a greater degree of equality and to combat the obvious racial segregation in and around Detroit.  The Supreme Court overturned the bussing policy, stating that in the colorblind eyes of the law, there was no way the Michigan policymakers could be race conscious.  And furthermore, “local control” of schools was the more important consideration as opposed to maintaining equality of education for all Americans, regardless of race.  Thus, the Supreme Court effectively affirmed and legitimated the practice of “white flight,” where whites left the nation’s largest cities to build suburbs for their own exclusive use, using pressure tactics and violence to deny non-whites entry.  The Milliken case definitively marked the end of the Brown era.  The return to the denial of reality – colorblindness – meant that one by one, the policies and practices that fought against racial segregation and institutional racism were struck down or significantly weakened in the 1980s and 1990s.

Over the past several years and into the present day, the Supreme Court has continued to side with colorblind reasoning very frequently.  All hope for a reality-based approach at the court is not lost, however.  Many decisions on cases involving race have been decided by thin, 5-4 margins.  Already, in 2009, the Supreme Court struck down a part of the Voting Rights Act of 1965 by a vote of 5-4.  It may still remove the most important part of that landmark legislation in a decision due very shortly.

Indeed, in the voting rights case currently before the court, the issue is very clearly whether the law should take reality into account or pursue a colorblind philosophy.  The question in this case is basically whether election officials working in areas of the United States with a demonstrated history of racism should have to get federal pre-approval before making any changes to their election procedures.  The Voting Rights Act of 1965 requires these historically racist electoral districts to “pre-clear” election procedures, to help prevent trickery (like secretly moving polling places) that would depress turnout among non-white voters.  The court has to decide whether race matters in elections enough to warrant this race conscious policy.  During the debate on this case, Chief Justice John Roberts emerged as a critic of the Voting Rights Act, while the retiring Justice David H. Souter defended the Act’s reality based-approach, saying, “I don’t understand how you can maintain that things have radically changed. That seems to deny the empirical reality.”

And this is the Supreme Court to which President Barack Obama has nominated Judge Sonia Sotomayor, to replace Justice Souter.  Already, conservatives in Congress have made plans to attack Sotomayor for her reality-based views on race.  Fortunately, the strong Democratic majority in the Senate makes blocking Sotomayor’s confirmation unlikely (although Democratic support for Sotomayor does not imply support for a reality-based worldview).  But the issue of race appears to be the issue on which conservatives will stake their claims for rejecting Sotomayor’s nomination.  The right does not want Souter’s successor to have a similar reality-based disposition.  Conservatives would prefer someone who was willing to follow the Plessy v. Ferguson colorblind logic.

For advocates of a reality-based judiciary, Sotomayor’s confirmation is imperative.  Her influence on the court in 2009 and beyond will be to begin the process of restoring the Brown v. Board reality-based legal thinking.  While the five reliably colorblind rightists on the court will not immediately waver in their conviction against recognizing the impact of race, Sotomayor will affect the thinking of her colleagues on the Court, and her voice from the bench will immeasurably shape public opinion on race and anti-racist policies.  Sotomayor has been involved in nearly 100 race-related cases.  One of her notable rulings impacted voting rights (Hayden v. Pataki), where she ruled that laws disfranchising convicted felons (who are disproportionately African American) are discriminatory and illegal (under the Voting Rights Act of 1965).  And she ruled against white firefighters who were angry that their supervisors recognized the existence of race in her now famous Ricci v. DeStefano decision (a decision that might be reviewed by the Supreme Court later this year).

Sotomayor’s career has shown that she’s capable of recognizing and weighing the impact of history and reality when issuing her opinions.  Arguing that racism isn’t a reality (as a majority of the public and the nine Supreme Court justices often do) requires a rather high level of historical amnesia.  It’s easy to overlook history when you depersonalize it.  So, I’d like to end this discussion with an excerpt from a letter written in Dayton, Ohio by a man named Jourdon Anderson.  Mr. Anderson wrote this letter to his former owner.

To my old Master, Colonel P.H. Anderson, Big Spring, Tennessee.

I got your letter, and was glad to find that you had not forgotten Jourdon, and that you wanted me to come back and live with you again, promising to do better for me than anybody else can….  It would do me good to go back to the dear old home again, and see Miss Mary and Miss Martha and Allen, Esther, Green, and Lee.  Give my love to them all, and tell them I hope we will meet in the better world, if not in this.  I would have gone back to see you all when I was working in the Nashville Hospital, but one of the neighbors told me that Henry intended to shoot me if he ever got a chance.

I want to know particularly what the good chance is you propose to give me.  I am doing tolerably well here.  I get twenty-five dollars a month, with victuals and clothing; have a comfortable home for Mandy, — the folks call her Mrs. Anderson, — and the children — Milly, Jane, and Grundy — go to school and are learning well…  We are kindly treated.  Sometimes we overhear others saying, ‘Them colored people were slaves’ down in Tennessee; but I tell them it was no disgrace in Tennessee to belong to Colonel Anderson.  Many darkeys would have been proud, as I used to be, to call you master.  Now if you will write and say what wages you will give me, I will be better able to decide whether it would be to my advantage to move back again….

Mandy says she would be afraid to go back without some proof that you were disposed to treat us justly and kindly; and we have concluded to test your sincerity by asking you to send us our wages for the time we served you.  This will make us forget and forgive old scores, and rely on your justice and friendship in the future.  I served you faithfully for thirty-two years, and Mandy twenty years.  At twenty-five dollars a month for me, and two dollars a week for Mandy, our earnings would amount to eleven thousand six hundred and eighty dollars.  Add to this the interest for the time our wages have been kept back, and deduct what you paid for our clothing, and three doctor’s visits to me, and pulling a tooth for Mandy, and the balance will show what we are in justice entitled to.  Please send the money by Adams’s Express, in care of V. Winters, Esq., Dayton, Ohio.  If you fail to pay us for faithful labors in the past, we can have little faith in your promises in the future….

[P.S.:] Say howdy to George Carter, and thank him for taking the pistol from you when you were shooting at me.

From your old servant, Jourdon Anderson.

Anderson wrote this letter in 1865, which is hardly ancient history.  It’s relatively easy to connect the dots from the eleven thousand dollar debt owed to Anderson’s family (and millions of other families) to today’s racialized wealth gap, where the average black family has less than 1/8 the wealth of the average white family in America.

It’s relatively easy to understand why black men are so often sent to death row for crimes they didn’t commit, if you consider that the ways freed slaves were dealt with (by the KKK and by the establishment of legal segregation) has never been fully repudiated.

And it’s relatively easy to understand that the average lifespan of Latino and black Americans is less than that of white Americans, if you consider that housing discrimination persists today, and it forces communities of color to live near toxic waste dumps at a disproportionate rate.

Jourdon Anderson and his family in Ohio, you see, are not a legal abstractions.  They’re not an idea or an archetype.  Jourdon and Mandy, and their children Milly, Jane, and Grundy are people.  They lived in the United States, and they had children, grandchildren, and great-grandchildren.  When we talk about race, it’s important to remember a simple fact: centuries of racism shape the present-day landscape in the United States.  Denying that just doesn’t make sense.

~ The author of this post is Erik Love, PhD-Candidate, UC-Santa Barbara, and he can be reached at


  1. My only point of contention concerns the notion of separate and equal. Considering the fact that even in schools that are demographically integrated, students of color still receive an unequal quality of education combined with a tangible sense of race animousity and condemnation. For me, it’s never been the “separate” part that was concerning; it’s the unequal part. I say make sure all students receive the same high quality of education and well, as radical as this may be, I’m fine with “separation.” At least in schools led by black adults, black children did receive affirmation that weakened some of the destructive power of racism in their communities. Don’t get me wrong, segregation remains a blight. But even in the reality of things, it’s never been separation that was the problem as much as it has been the inequality. And I think even white liberals tend to substitute one for the other as the integration and togetherness ensures equality. It doesn’t.
    That said, this was a great, great read!! I’m tempted to print it out for myself and just might. It was awesome.
    Though, I will again argue that seeing as how the emperical evidence shows that race continues to operate to the detriment of people of color, I seriously doubt the sincerity of any judge or justice who argues for “colorblind” policy. They’re not trying to achieve a world free of racism. They’re trying to preserve and keep this world rife with racism.

  2. Randy B.

    It is said that racist societies create a historiography that support or reinforce racial superiority. In America, we are creating a historiography that excuses our 234+ years of slavery and discrimination. Our legal system is not immune to the creation of this historiography. As judges review past decisions to determine precedence in the law, they have to remember that some of those decisions and some of the laws they were written about were written to preserve the prevalent historiography. Some could say that judges that who ignore that historiography and make decision based on the current circumstances involved in the case, are legislating from the bench, especially if their decision differs greatly from or alters the historiography. Judge Sotomayor, with her comments concerning race, is seen as exactly the kind of Supreme Court Judge that would rule in this way.

  3. distance88

    Excellent read. I think ‘color-blindness’ is scary for many reasons, but primarily because it assumes that we are living in some sort of racial vacuum–clearly ignoring the existing racial hierarchy while erasing this country’s racial history.

  4. Thanks to Jessie and Joe for publishing my article in this fantastic venue. And thanks to you all for your kind words and thoughtful comments.

    I agree with No1KState that it might be possible (or desirable) to institute separate and equal schools. And I further agree the possibility of alternative institutions shouldn’t excuse the willful denial of racist (and definitely unequal) segregation currently in place across American school systems. It’s certainly no longer controversial to claim that our schools are in crisis, and the racial dimension of that crisis is particularly alarming. Now, we only need to convince policymakers (including appellate court judges) to move on that crisis.

    So this is a bit off topic, but it bears mention that the House version of the “stimulus” package (American Reinvestment and Recovery Act) had in it a massive, federal infusion of funding to improve school infrastructure. Much of that desperately needed cash would have gone to improve the often dilapidated public school buildings in urban areas, which of course are schools attended mostly by nonwhite students. The Senate senselessly stripped that funding out of the bill, after some senators opined that federal funding for schools would undermine the principle of “local control.” The White House senselessly did not make a fuss about the lost school construction provision of the stimulus. And the cycle of inequality between suburban and urban schools is allowed to continue.

    I also agree with Randy B. and distance88, who both emphasize the need to recognize, repudiate, and compensate for America’s racist history. The courts have long been a place where history has no bearing, even in cases clearly demarcated by race. I hope that Justice Sotomayor helps to put some historical (and contemporary empirical) perspective back in the Supreme Court.

    Ironically, while I was writing this article (and just as it went to “press”), the US Senate apologized for slavery for the first time ever. It will be amazing to see whether that apology plays a role in the near future, in the Supreme Court’s ruling in the voting rights case, or in the confirmation hearings for Sotomayor.

  5. Great to dialogue with you, Eric! I’m not holding my breath when it comes to the Senate apology. Apparently, along with the apology came the instruction that it should not be used to make a case for reparations.


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