The Way to Stop Discrimination on the Basis of Race . . .

Abstract

Chief Justice John G. Roberts, Jr. and Justice Sonia Sotomayor have expressed differing views on the “way to stop discrimination on the basis of race.” Chief Justice Roberts, in the Supreme Court’s 2007 Parents Involved decision, stated: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justice Sotomayor, in the Court’s 2014 Schuette decision, stated: “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.” This Article examines the Justices’ disagreement on this important subject. As discussed herein, Chief Justice Roberts’s race-based approach focuses, in acontextual and ahistorical ways, on racial classifications and race as color or phenotype. Justice Sotomayor’s racism-based analysis is cognizant of the harmful effects of this nation’s contextual and historical discrimination against racial minorities. This Article concludes that Justice Sotomayor’s position provides the best avenue for those interested in reaching the “stop discrimination” destination.

Keywords: Constitution, equal protection, race, racism, discrimination, Roberts, Sotomayor, Parents Involved, Schuette