Friday, June 30, 2023

Clarence Thomas' Concurring Opinion on Affirmative Action Is Incredible

By Spencer Brown |

Even though Supreme Court Justice Clarence Thomas joined Chief Justice Roberts in the majority opinion finding that using a student's race in college admission decision violated the 14th Amendment, Thomas also filed a concurring opinion explaining more of his thinking on the matter. 

In his usual style, Justice Thomas traces the history of the United States and its citizens' ongoing efforts to pursue a more perfect union — efforts that haven't always been smooth and have, at points, failed to move the country forward. Still, Thomas shares his optimism that America will continue to become a better place, all while excoriating the left's "equity" agenda.

"The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity," Thomas writes. "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," he adds. "Only that promise can allow us to look past our differing skin colors."

Elsewhere in his concurring opinion, Thomas lays bare the left's flawed — and quite racist — beliefs about different races.

"In fact, all racial categories are little more than stereotypes, suggesting that immutable characteristics somehow conclusively determine a person’s ideology, beliefs, and abilities. Of course, that is false," Thomas notes. "Members of the same race do not all share the exact same experiences and viewpoints; far from it," he explains. "A black person from rural Alabama surely has different experiences than a black person from Manhattan or a black first-generation immigrant from Nigeria, in the same way that a white person from rural Vermont has a different perspective than a white person from Houston, Texas." 

Despite this obvious reality, Thomas reminds that "universities’ racial policies suggest that racial identity 'alone constitutes the being of the race or the man.'"

"That is the same naked racism upon which segregation itself was built," Thomas rightly concludes. "Small wonder, then, that these policies are leading to increasing racial polarization and friction."

Thomas also refuses to hold back on his fellow justices' flawed views of affirmative action and mistaken interpretation of the Constitution in his opinion. In evaluating the argument made in a dissenting opinion filed by Justice Ketanji Brown Jackson, Thomas brings the fire:

Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.

Nor do Justice Jackson's statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood.

"Justice Jackson’s race-infused world view falls flat at each step," Thomas declares. "Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them," he notes. "And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism," Thomas adds.

Clocking in at 58 pages, Justice Thomas' concurring opinion (beginning at page 49 here) ends with a straightforward three-paragraph conclusion:

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.

The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled. And, it sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes. Those policies fly in the face of our colorblind Constitution and our Nation’s equality ideal. In short, they are plainly—and boldly—unconstitutional. See Brown II, 349 U. S., at 298 (noting that the Brown case one year earlier had “declare[d] the fundamental principle that racial discrimination in public education is unconstitutional”).

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.