This article was originally published at Dorf on Law.
Justice Clarence Thomas is six years away from being the longest-serving justice in American history. Much has been written about his influence and his law clerks, many of whom have gone on to become judges or hold other positions of power. Even more has been written about his views on race. Many, but not all, on the left believe Thomas has done enormous damage by his stubborn and persistent embracing of the so-called color-blind Constitution. Many on the right believe that he is a hero for that dogmatic position. Still others are conflicted because they see in Thomas a fiercely proud man who believes strongly that people of color will never benefit from white largesse and that the best way to dismantle racism in this country is to allow African Americans and other people of color to succeed on exactly the same terms as white folks because any other position is demeaning to all of our citizens including traditionally disadvantaged minorities.
I side with those who see great harm in Thomas’ opposition to any government aid directed specifically to people of color. But this essay is about something else. It is about the mythology and hypocrisy of so-called textualist and originalist judges, especially when it comes to race. And the greatest offender of all is Justice Clarence Thomas.
Next year, the Supreme Court is going to hear two major affirmative action cases. It is likely the conservative majority will end all affirmative action programs run by the government and private educational institutions that receive government money (virtually all of our colleges and universities). There is a reasonable chance that Thomas will write those decisions given his long-standing opposition to any measures that use race to try and ameliorate past racism.
On this issue, and many others, Thomas and his conservative colleagues on the bench are hypocrites. One can be in favor of judicial invalidation of programs that use race to get past race or one can be an originalist/textualist. But one cannot be both. Yet that is exactly what Thomas claims to be. His jurisprudence on race represents his personal political and sociological preferences, nothing more and nothing less. This term’s decisions on guns and abortion reinforce this thesis.
Writing for the majority in New York Pistol and Rifle v. Bruen, Thomas, on behalf of the other five conservative justices, emphasized that text and history must be the guiding lights for judges to determine the constitutionality of both gun laws and many other constitutional rights. Similarly, Justice Samuel Alito, writing for the majority in Dobbs v. Jackson Women’s Health, applied a strong text and history approach, which Thomas used in his concurrence, to suggest the complete overruling of all substantive due process cases.
This extreme and overly narrow focus on originalism and textualism, of course, has been Thomas’ calling card for his entire judicial career. The real inspiration for Thomas’ preferred results is how they accord with Republican Party politics, not a good faith assessment of our Constitution’s text and history. Nowhere is this hypocrisy more obvious than on issues of race.
Universities across the country take race into account in order to build racially diverse classes. Most of the universities that use race in admissions are still largely white and many take legacy and donor status seriously, which, of course, supports white applicants. The question the court will confront next year is whether these universities may take race into account at all.
Justice Thomas has repeatedly answered that question in the negative, advocating a Constitution that is color-blind and makes all governmental use of race illegal absent the most compelling interest and means narrowly tailored to further that interest. Thomas has voted to strike down every affirmative action plan he has ruled on as a justice. In his dissent in Grutter v. Bollinger, Thomas said the following:
The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society….
The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot. I will not twist the Constitution to invalidate legacy preferences or otherwise impose my vision of higher education admissions on the Nation. The majority should similarly stay its impulse to validate faddish racial discrimination the Constitution clearly forbids.
Thomas says that the “Constitution clearly forbids” admissions programs that use race as one element of their evaluations of prospective students. Such a rule would have to come from either text or history to be consistent with Thomas’ many statements about constitutional interpretation and his opinions this term in the abortion and gun cases. So let’s look at text and history.
The relevant section of the 14th Amendment says the following:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
A plaintiff challenging a state affirmative action program must find the asserted right in this section of the 14th Amendment. Thomas does not recognize the due process clause as a font of rights so that section can’t be applicable. He does think the privileges or immunities clause protects certain rights (such as gun rights) but he has never used that clause in an affirmative action case. So, we are left with the equal protection clause, which is in fact the one relied upon by Thomas to support his color-blind principle.
The equal protection clause does not mention nor prohibit the use of racial classifications of any kind, much less racial classifications used by majorities to assist minorities. Although we are all guaranteed the “equal protection of the laws,” what that means is highly contestable in the context of generations of slavery, Black Codes, Jim Crow, red-lining, and other formal, legal, and overt racially discriminatory policies used by white people against people of color.
Of course, from the late 19th century to the mid–20th century, the court allowed all-white universities to completely exclude people of color, so there is no long standing tradition in this country of color-blindness. We do know that the main purpose of the 14th Amendment, like the other Reconstruction amendments, was originally to help the newly freed enslaved people integrate into society. There is virtually no historical evidence suggesting that a purpose of the amendments was to tie the hands of people trying to ameliorate the terrible legacy of American racism.
Justice Thomas has never seriously explored the 14th Amendment’s contemporaneous original meaning as applied to affirmative action. In Grutter, he did quote, as he likes to do, Fredrick Douglas:
In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.
If you see him (a black person) on his way to school, let him alone, don’t disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot box, let him alone, don’t disturb him! If you see him going into a work-shop, just let him alone—your interference is doing him positive injury.
Tack that paragraph on to the one quoted by Thomas and the meaning changes dramatically. Douglass was angry at the racial discrimination faced by blacks at the time he was writing, not making any argument for or against government preferences to make the lives of the newly freed enslaved people easier. Moreover, at other times, Douglass stated that the government had not done enough for Black Americans. In 1875, he said the following:
The world has never seen any people turned loose to such destitution as were the four million slaves of the South. … They were … free to hunger, free to the winds and the rains … free without bread to eat, or land to cultivate. … We gave them freedom and famine at the same time. The marvel is that they still live. What the negro wants is, first, protection of the rights already conceded by law and, secondly, education. Talk of having done enough for these people after two hundred years of enforced ignorance and stripes is absurd, cruel, and heartless.
Put simply, Douglass’ writings simply do not justify any inference that the 14th Amendment’s original meaning precludes racial criteria used by the government to assist people of color. The only other evidence of original meaning that Thomas has ever employed to justify his strident color-blind principle is an Iowa case from 1868 based on state law. That case simply does not support the rigid rule Thomas espouses for the federal Constitution.
In his affirmative action opinions, Thomas devotes most of his time to the negative policy consequences that he says result from affirmative action, such as stigma and backlash. Thomas and his conservative colleagues keep telling us that text, history, and tradition are the only appropriate tools for judges exercising judicial review. But their continued insistence that the 14th Amendment prohibits all race-based government policies simply cannot be defended on that basis.
Next year, this hypocrisy will almost certainly carry the day. Once again the unfortunate lesson from the highest court to lower courts and the American people will be “do what we say,” whether or not text, history, or tradition actually support that result.