“The result of today’s decision is that a person’s skin color may play a role in assessing individualized suspicion, but it cannot play a role in assessing that person’s individualized contributions to a diverse learning environment. That indefensible reading of the Constitution is not grounded in law and subverts the Fourteenth Amendment’s guarantee of equal protection,” dissents Justice Sotomayor (italics mine).

To what is she dissenting?

“In the wake of the Civil War, Congress proposed and the States ratified the Fourteenth Amendment, providing that no State shall ‘deny to any person … the equal protection of the laws.’ Amdt. 14, §1,” as opined by Justice Roberts (the Court).

Can you see the disagreement?

To help, let’s consider another document’s claim regarding race.

St. Paul wrote, “For you are all sons of God through faith in Christ Jesus. For all of you who were baptized into Christ have clothed yourselves with Christ. There is neither Jew nor Greek, there is neither slave nor free man, there is no male and female, for you are all one in Christ Jesus.”

Forget, if you must, that the claim comes from an exclusive Christian teaching. No proselytizing here. But I want you to ask yourself if you can understand how Paul can list sets of two very real groups and then suggest that the very distinctions are abolished/overcome. Can you understand this concept of Paul’s/Christianity’s?

Good.

Justice Sotomayor cannot.

Justice Roberts can. But Justice Sotomayor cannot.

Justice Sotomayor writes over and over that because the constitution and its amendments and other SCOTUS opinions use words like “white” and “Mexican” that the law of the land is “race conscious”. This belief of hers is over and against the concept that the law is colorblind.

But I return again to the question I have posed. Is the simple use of words which delineate some people from others enough to transcend the otherwise transcendent belief that under some higher perspective, the delineations do not exist? Put another way, can the forest be lost for the leaves? Can the bigger point be missed? Or even, should the country have federal laws at all? Or should each dispute be brought before some local judge and the judge decide whatever they please?

The point Justice Sotomayor is pressing isn’t semantic.

When the border patrol is allowed to observe that some man around the border between the US and Mexico is Mexican-looking and subsequently act with suspicion towards him that they wouldn’t use with a “white” man, real people are involved. And when Harvard admissions folks are not allowed to ask, “Brown?”, real people are likewise involved.

The question, then, is are the two situations meaningfully the same situation when viewed from the perspective of “the Law”?

The answer is, “No.”

The reason for “no”, the reason they are distinct (despite both being similar in “gaining entrance” theme) is the constitution applies to US Citizens, not to any person, which is the very question the Border Patrol is tasked with helping to sort out in the first place.

Finally, as probably all of you know, the only question on my mind when I read Justice Sotomayor is, “Is she serious?”

If she were serious (and honest), then her sentences would read, “The result of today’s decision is that [all persons-of-earth-regardless-of-national-citizenship’s] skin color may play a role in assessing individualized suspicion by the US Border Patrol, but it cannot play a role in assessing that person’s individualized contributions to a diverse learning environment. That indefensible reading of the Constitution is not grounded in law and subverts the Fourteenth Amendment’s guarantee of equal protection” (italics mine).

For that is her argument. And it is a serious argument, despite being flatly wrong as the 14th Amendment does not apply to every swinging dick which finds itself within the borders of this great country.