Sotomayor Chides High Court’s ‘Impotence’ on Affirmative Action

Justice Sonia Sotomayor rebuked Thursday’s Supreme Court ruling effectively barring affirmative action, the first time in four years a justice explained from the bench the reasoning for parting ways with the majority.

An emotional Justice Elena Kagan was the last justice to read from her dissent in 2019 in the partisan gerrymandering case, Rucho v. Common Cause. The justices in 2020 paused reading their rulings because of the pandemic and only resumed this term.

Sotomayor chided her conservative colleagues for voting as a group to effectively overturn decades of precedent allowing for the limited consideration of race in collage admissions.

Calling the 6-3 decision an “unjustified exercise of power” that shows the court’s “impotence,” Sotomayor said the court “belies reality” in backing a color-blind reading of the Constitution.

“Ignoring racial inequality will not make it disappear,” Sotomayor, the first Latina justice, said.

She was joined in dissent by Kagan and Justice Ketanji Brown Jackson, who wore a large, white jabot to the courtroom. The decorative collar may have been a nod to Justice Ruth Bader Ginsburg, who wore what she called a “dissenting jabot” for some of her most notable dissents.

Jackson, the first Black female justice, was stoic during the nearly 45 minutes that Chief Justice John Roberts, Clarence Thomas, and Sotomayor explained their reasonings. Three justices reading individually was a rarity.

While other justices scanned the courtroom and their colleagues, Jackson’s eyes were mostly fixed on the back, where members of the public listened.

Though not unheard of, Thomas read from his concurring opinion from the bench. Justice Antonin Scalia similarly explained his concurrence in the 2015 death penalty case Glossip v. Gross.

Thomas said it wasn’t his usual practice to explain his reasoning from the bench, but was “compelled” to do so given the discriminatory effects of affirmative action on Asian-American applicants.

He said affirmative action programs perpetuate “never ending cycles of victimization.”