Supreme Court Justice Clarence Thomas wrote a a concurring opinion in Thursday’s historic affirmative action case that is one of the most important of his three decades on the nation’s highest Court.
While acknowledging that the United States has not always lived up to its ideals, and that our society is not “colorblind,” he argues that the Constitution is, in fact, colorblind, and that its nonracial vision affirms the dignity of every individual.
In so doing, Thomas has given a tremendous gift to the United States on the eve of Independence Day, one that affirms the founding principles of the nation, at a time when they are under attack by divisive identity politics. Thomas reminds us that every successful movement to reform this country has demanded that we live up to the ideals of our founding covenant, not that we discard them or abandon the vision of freedom that is their core.
This opinion is a long time coming. Thomas has spoken out for years against the racial discrimination inherent in affirmative action, and has reiterated his views in a variety of dissents. The Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College is the opportunity he has been waiting for, the chance to compile the arguments he has made on this topic over the decades into one elegant masterpiece.
Thomas starts with a basic principle. “The Constitution continues to embody a simple truth: Two discriminatory wrongs cannot make a right.” He cites the famous dissent of Justice John M. Harlan in Plessy v. Ferguson (1896), in which the Court upheld segregation despite the principles of equality in the Fourteenth Amendment. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” Harlan wrote.
Thomas recalls that he has long disagreed with the use of race in college admissions, which he has regarded as a retreat from the Harlan’s principle, which animated the Court’s decision to ban segregation in Brown v. Board of Education (1954). He notes further that he has argued for decades that “[T]he use of race in higher education admissions decisions—regardless of whether intended to help or to hurt—violates the Fourteenth Amendment.”
While agreeing with the majority’s decision Thursday to strike down the use of race in college admissions, which hurt Asian-American students in particular, Thomas explains that he wants to extend the same principle to all forms of affirmative action in America. “[A]ll forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution,” he writes, adding that all have “pernicious effects.”
This view contrasts directly with that expressed by Justice Ketanji Brown Jackson in her dissent, in which she argues that there are “universal benefits of considering race” in the context of college admissions. Jackson was herself chosen as a justice specifically because of her race and gender — though she professed to be unable to define the term “woman” — and is the exemplar of the left’s principles, in this case and in many others as well.
Thomas takes on Jackson’s argument later in his opinion. But first, he provides a history of the Fourteenth Amendment, passed in the wake of the Civil War, and subsequent civil rights legislation to provide for racial equality. Thomas does so to show that the fundamental principle of the amendment’s Equal Protection Clause was to guarantee that “All citizens of the United States, regardless of skin color, are equal before the law.”
Therefore there ought not to have been any tolerance for the use of race to discriminate against Americans, whether for better or for worse. This, too, contrasts with Justice Jackson’s view, which she expressed in oral arguments in an earlier case, that the Fourteenth Amendment was not intended to be “race neutral or race blind” and that the authors of the amendment intended it to be interpreted in a “race-conscious way.”
“The earliest Supreme Court opinions to interpret the Fourteenth Amendment did so in colorblind terms,” Thomas notes. “Their statements characterizing the Amendment evidence its commitment to equal rights for all citizens, regardless of the color of their skin.” He then describes a new approach — “an ‘antisubordination’ view of the Fourteenth Amendment: that the Amendment forbids only laws that hurt, but not help, blacks.”
That is the view of the Court’s dissenters in the case, and Thomas notes that it is a theory that “lacks any basis in
the original meaning of the Fourteenth Amendment.” Thomas agrees that the Fourteenth Amendment allows the government to use race in a context where doing so would remedy past racial discrimination by the state — but only in a way that would “further a colorblind government, not perpetuate racial consciousness,” he argues.
In that sense, the argument for “diversity” in college admissions fails to uphold the Fourteenth Amendment’s principles, he argues. It is not even clear what purpose “diversity” has to education, Thomas argues. Claims that diversity confers some intellectual benefit are too vague, and fall apart when one notes that the primary kind of diversity Harvard and other elite colleges care about is racial diversity — not religious diversity, for example.
He then attacks the idea that the Court should somehow trust universities to apply affirmative action policies fairly, noting there is no reason to defer to an “alleged discriminator.” “History has repeatedly shown “that purportedly benign discrimination may be pernicious, and discriminators may go to great lengths to hide and perpetuate their unlawful conduct.” There are always victims of even well-intentioned discrimination policies.
Thomas notes that the affirmative action policies used by Harvard and other colleges could end up repeating past discrimination against minorities, such as Jews, who were targeted by exclusionary policies a century ago, and who now find themselves classified as “white” and therefore disadvantaged in the admissions process. There is no reason, he says, for the Court to tolerate discrimination against any group, regardless of the goal.
Thomas then notes that the Fourteenth Amendment was not just a “second founding,” but reflected the vision of equality in the first Founding, and the Declaration of Independence. He admits: “Our Nation did not initially live up to the equality principle. The institution of slavery persisted for nearly a century, and the United States Constitution itself included several provisions acknowledging the practice.” But the vision was always there.
Affirmative action, Thomas writes, not only contrasts with that vision, but does not have the benefits that its proponents claim. He argues that racial preferences in college admissions at institutions like Harvard do not raise the overall number of blacks and Hispanics admitted to college nationwide, but “simply redistribute individuals among institutions of higher learning,” concentrating more of them in the most elite institutions.
In so doing, he continues, affirmative action may harm its intended beneficiaries rather than helping them. “As anyone who has labored over an algebra textbook has undoubtedly discovered, academic advancement results from hard work and practice, not mere declaration.” There is no substitute for the hard work it takes the rich kid as well as the poor kid to learn the material, and telling students otherwise leaves them unprepared for the task.
In addition, those black students who would, in fact, be able to qualify for admission without the help of racial preferences are stamped with a mark of inferiority, Thomas writes. This perpetuates a racial “stigma.” And such preferences “may wind up helping the most well-off members of minority races without meaningfully assisting those who struggle with real hardship.” And, of course, they harm qualified students who are denied admission.
Moreover, “sorting by race does not stop at the admissions office,” Thomas notes. The use of race in admissions has perpetuated identity politics on campus, even leading to the growing dubious practice of (voluntary) racially segregated graduation ceremonies. The result is not racial integration and equality, but “a world in which everyone is defined by their skin color, demanding ever-increasing entitlements and preferences on that basis.”
He concludes:
The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives, and goals, but with equal dignity and equal rights under the law.
Thomas then takes on Justice Jackson’s dissent. Jackson makes a passionate argument: “Our country has never been colorblind,” she argues, and racial inequality has been passed on from generation to generation in a way that makes racial preferences necessary to address that inequality. Moreover, she said, racial preferences are a way of acknowledging the country’s painful past, and of affirming the dignity of those who have inherited it.
In response, Thomas argues that while the country has not been colorblind, the Constitution is. “I, of course, agree that our society is not, and has never been, colorblind,” Thomas writes. “People discriminate against one another for a whole host of reasons. But, under the Fourteenth Amendment, the law must disregard all racial distinctions.” Jackson, he says, would replace that vision “with an organizing principle based on race.”
Thomas goes further, attacking the view that “almost all of life’s outcomes may be unhesitatingly ascribed to race.” He goes further:
Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. … Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. … Social movements that invoke these sorts of rallying cries, historically, have ended disastrously.
Thomas also points out that Justice Jackson largely ignores the real harm that affirmative action policies do to other people, in this case the Asian-American students who sued Harvard and the University of North Carolina.
He concludes:
This vision of meeting social racism with government-imposed racism is thus self-defeating, resulting in a never-ending cycle of victimization. There is no reason to continue down that path. In the wake of the Civil War, the Framers of the Fourteenth Amendment charted a way out: a colorblind Constitution that requires the government to, at long last, put aside its citizens’ skin color and focus on their individual achievements.
…
The great failure of this country was slavery and its progeny. And, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments, as Justice Harlan predicted in Plessy. We should not repeat this mistake merely because we think, as our predecessors thought, that the present arrangements are superior to the Constitution.
…
While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.
This is among Justice Clarence Thomas’s finest opinions. It may even be called a “third founding” — a rescue or restoration of the country’s original vision, which has been shrouded for the past half-century by the idea that new discrimination is the only remedy for past discrimination.
Finally, Americans have been freed to focus on removing the ongoing racial disparities in basic education, without which affirmative action would be moot.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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