DAVID BERNSTEIN: Does race really “matter” to Justice Sotomayor?

Judging from her dissent in the Schuette case last term, the answer is, “only when the concept can be manipulated to support her political agenda.” . . .

The breadth of Justice Sotomayor’s “race matters” concern is not some discernibly logical or empirical theory about for whom “race” or, for that matter, “different appearance from the mainstream” matters. Rather, being a “racial minority” is implicitly defined by an arbitrary combination of artificial census categories, university affirmative action admissions policies, and a sense of which minority groups, broadly construed, are not “making it.” The “making it” factor is itself highly problematic, given that some subgroups of the Asian category, not to mention some whites (as in Appalachia), have much worse socioeconomic indicators than some subgroups of Hispanics.