JOAN BISKUPIC: It has been four years since the Justices read
their opinions out loud like this for all of us to see
and for us to have a dissent from the bench.
Because of COVID, they hadn't been on display like this.
And to John's point about this generational shift,
the weight of history was so evident in the room
as the Justices began to read.
Chief Justice John Roberts sitting in the middle
of the nine, with the Solicitor General and all these lawyers
sitting in front of him-- and his wife Jane kind of
slips in right before he starts to read.
So you could have heard a pin drop.
And he announces right off the bat
that they're rolling back all affirmative action.
And I have to say, there was a bit
of defiance in his voice, even though, Kate, Sarah, John--
this is something John Roberts has been working on for,
himself, many, many years, back to his time
as a young Ronald Reagan administration lawyer.
He does not believe in any kind of race conscious remedies.
He went on about how race conscious admissions results
in racial balancing, which is against the Constitution's
Equal Protection guarantee.
And what he did was he spun words out of the 2003 Grutter
decision that you all have referenced
to say there was always supposed to be a deadline on this.
It was always supposed to end.
So he took bits of history and just
steered it right toward the time is now,
no regrets, we're doing this.
And then he only took about 10, 15 minutes to read his,
but then Clarence Thomas, who was with the majority,
the court's only Black male justice at this point,
starts to read his.
Now, one thing I would just say watching these other justices
listening--
Ketanji Brown Jackson, our newest Justice,
the first female African-American Justice,
just sat looking out stone faced the entire time
this is going on.
Some of the justices are looking at their colleagues
as they're reading, but she looked out,
not betraying anything on her face--
although we know how she felt because of what then unfolds.
So Justice Thomas, he really immediately goes to the fact
that these programs could have discriminated
against Asian-Americans.
And he likened-- he hearkened back to slavery
and all the wrongs of history--
the Jim Crow era and put these programs in that category,
and talked about how much they betrayed
the Equal Protection guarantee of the 14th Amendment.
He spoke-- he and then following him,
Justice Sotomayor spoke so long, they had to take breaks
to drink some water.
But he spoke for about 20 minutes talking
about these programs were always bad,
they were always stigmatizing, they always hurt both sides.
Affirmative action, in his mind, was always a zero sum game.
And, inevitably, he believed that not only white students
were harmed, but Black and Hispanic students,
and now, in these cases, especially
Asian-American students.
When he finished, then Justice Sotomayor, representing
the dissenters, spoke.
She spoke-- she's our first Latina justice on the court.
She's the most senior of the liberal Justices,
which is why she began speaking and she read this oral dissent.
And she talked about the profound mistake
the majority was making here.
She said it would close the doors of opportunity
to people across the nation for schools, for then business,
for the military.
It would have such reverberations.
And she talked about the true promise of the Equal Protection
Clause and how that has always had a component that was race
conscious-- that the guarantee of equal protection
necessarily meant that people's race had
to be taken into consideration.
I should say that's the fundamental tension
at the core of this case--
is taking race into account a form of racial discrimination,
as the Chief Justice believes?
He's famously said the way to stop race discrimination
is to stop discriminating on the basis of race.
And that was the core message as he spoke.
But what Justice Sotomayor said as she--
she's the only Justice that has been wearing
a mask because of COVID.
So she removes her mask and she starts speaking, going on
for about 25 minutes about what a wrong turn the majority
has taken.
And toward the end of her comments,
she refers to her colleagues, Justices Kagan and Justice
Jackson, and she says Justice Jackson
has filed a separate dissent that Justice
Kagan and she had joined.
And she wanted to read the high points of that.
So she wanted to give voice to her colleagues in the fullest.
But at the very end, she said, we shall overcome.
It was a very mournful, robust dissent that had just a lot
of unhappiness at its core--
as I said, pretty mournful.
But she did say "we shall overcome."
Despite what the majority has done here,
there will be a way for progress to continue.
But the bulk of her dissent was essentially
saying that her colleagues had staunched progress.