Geof Stone Responds to National Review Editorial Attacking Justice Sotomayor

The National Review, Justice Sonia Sotomayor, and Affirmative Action
Geoffrey R. Stone
The Huffington Post
April 24, 2014

In a stunningly insulting editorial, the National Review attacked Supreme Court Justice Sonia Sotomayor for her opinion dissenting from the Supreme Court's recent decision upholding the constitutionality of a state's ban on affirmative action. TheNational Review decried Sotomayor's opinion as "Orwellian," as "legally illiterate and logically indefensible," and as "a case study in . . . moral and legal corrosion." It accused her of "elevating ethnic-identity politics over the law" and of being "a naked and bare-knuckled political activist with barely even a pretense of attending to the law," and it mocked her as a "self-described 'wise Latina.'"

Of course, the National Review has every right under the First Amendment to say all of these things, and I would defend to the death, in Voltaire's words, its right to say them. But that does not make them any less offensive -- or ignorant of the law.

What was the issue in Schuette v. Coalition to Defend Affirmative Action? In 2003, the Supreme Court, in Grutter v. Bollinger, held that the University of Michigan could constitutionally take race into account in its admissions policies in order to increase the diversity of its student body if it did so in a careful and precise manner. Thereafter, the state of Michigan enacted Proposal 2, which prohibited all public educational institutions in the state from using preferences based on race, gender, or national origin in their admissions policies.

Geoffrey R. Stone