Yesterday’s oral arguments did not display Justice Sotomayor at her best. Or at least we should hope they didn’t.
Sotomayor somehow thought it meaningful to insist that “Race alone doesn’t account for why someone’s admitted or not admitted” (UNC transcript 17:3-4) and that race “is never solely determinative” (156:21-22). But the relevant question in determining whether someone has been the beneficiary of racial discrimination—whether racial discrimination can be said to have been determinative for that person’s admission—is whether that person would not have been admitted but for his race. As Harvard’s lawyer Seth Waxman acknowledged, the district court in the Harvard case found that race was determinative for a full 45% of African-American and Hispanic applicants admitted to Harvard. (Harvard transcript, 83:8-11; see SFFA lawyer at 13:15-17.)
Sotomayor also gave the wildly false impression that racial preferences come into play only to “break the tie” among the sort of “super-qualified” “equal applicants” who “have perfect scores on every metric.” (Harvard transcript, 36:6-37:2.) That is a ludicrous misstatement of the role and magnitude of racial preferences at Harvard and elsewhere.
Sotomayor also botched the elementary distinction between de jure (in law) and de facto (in fact) segregation. After she stated that “we certainly have de jure segregation” (Harvard transcript 20:13-14), a suitably puzzled Justice Alito asked SFFA’s counsel whether he was “aware of de jure segregation today” (21:3-4). When counsel stated that he was not, Sotomayor replied with this rhetorical question and her misunderstanding of what de jure means:
It’s not clear that there’s segregation between there are large swaths of the country with residential segregation, there are large numbers of schools in our country that have people of just one race, there are school districts that have only kids of one race and not multiple races or not white people?
De jure to me means places are segregated. The causes may be different, but places are segregated in our country.
On a much lesser note, Sotomayor gave another illustration of her propensity for malaprops. In this passage from the UNC argument in which she challenged the models, or simulations, that SFFA had presented of alternative race-neutral means of attaining racial diversity in a student body, she alternates between simulation(s) and stimulation(s). (The passage corresponds to the UNC transcript 47:5-48:6. I hear the proper term at 47:6, 47:18, and 48:4 and the malaprop at 47:11, 47:13, and 47:24. The transcriber missed the errors, as I also did when I listened to the livestream.) When Sotomayor again said stimulation in the Harvard argument, Harvard counsel Seth Waxman corrected her. (74:21-75:1.)