Here’s a snippet from her dissenting opinion (emphasis added), which she took the unusual step of reading from the bench on Tuesday:
In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.
Although she didn’t mention him by name, Sotomayor was apparently alluding to Roberts’ frequently-quoted line from a 2007 case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Elsewhere in her opinion, Sotomayor quoted that line from Roberts and described it as “out of touch with reality.” Her attack wasn’t lost on the chief justice, who filed a brief concurring opinion responding to her, alongside Justice Anthony Kennedy’s 6-2 controlling opinion.
The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” … But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.