Chief Justice John Roberts may have written the majority opinion for the U.S. Supreme Court that ended affirmative action on Thursday, but Justice Clarence Thomas may savor the moment the most.
Thomas, the second of only three Black Supreme Court justices in American history, is the court’s harshest opponent of affirmative action policies. Despite, or rather because of, his experience of being among the first generation of Black students to benefit from affirmative action policies, Thomas views them with the greatest disdain.
In a solo concurring opinion involving Harvard College and the University of North Carolina, Thomas declared victory and stated his opinion that the precedent in the 2003 case of Grutter v. Bollinger, which had upheld affirmative action, was now dead ― something that Roberts did not do.
“The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled,” Thomas wrote. “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.”
Thomas uses his concurrence to bring all of his past opinions to bear to dance on the grave of a policy of “racial discrimination” that he believes stamped him with the stigma of race ever since he left his home in Pin Point, Georgia.
After attending College of the Holy Cross, Thomas chose to go to Yale Law School. The law school had just implemented an affirmative action policy that set a quota of 10% of incoming classes to be people of color. Thomas was among 12 other Black students in his class.
He has since recounted feeling unnerved by the smiling faces of white liberals telling him that he was there due to their beneficence. He would connect this to a favorite song of his at the time, The Undisputed Truth’s “Smiling Faces Sometimes” with its lyrics:
Smiling faces, smiling faces, sometimes
They don’t tell the truth
Smiling faces, smiling faces tell lies
“As much as it had stung to be told I’d done well … despite my race, it was far worse to feel that I was now at Yale because of it,” Thomas wrote in his 2007 memoir.
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The white liberal acting out of supposed charity to the Black student was actually just enacting a sort of perverse inversion of the old racism, Thomas would later say. He would frequently equate the policies of racial segregation and affirmative action.
“I believe that there is a ‘moral [and] constitutional equivalence’ … between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality,” Thomas wrote in a 1995 affirmative action opinion.
He echoed this belief Thursday in his concurrence supporting the plaintiffs, Students for Fair Admissions Inc.: “Then, as now, the views that motivated Dred Scott and Plessy have not been confined to the past, and we must remain ever vigilant against all forms of racial discrimination.”
Thomas has long written and opined that affirmative action started from a premise that Black people were “inferior” and in need of white people’s helping hand. This made white people the central character in the affirmative action narrative while making the Black recipient ― and the rest of society ― question their achievements, Thomas argued.
“[Blacks] owe all their achievements to the ‘anointed’ in society who supposedly changed the circumstances ― not to their own efforts,” Thomas wrote in 1995 for The Weekly Standard.
This beneficence from the “anointed” not only creates doubt and confusion for the Black recipients of affirmative action but also undermines their accomplishments to themselves, their peers and in society at large. It doesn’t matter whether a given Black person achieved thanks to affirmative action or not.
“Who can differentiate between those who belong and those who do not?” Thomas wrote in his opinion in Grutter.
This leaves a question mark over the accomplishments of all successful Black people and marks them with a stigma of inferiority, he reasoned.
“The problem of stigma does not depend on determinacy as to whether those stigmatized are actually the ‘beneficiaries’ of racial discrimination,” Thomas continued in Grutter. “When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma ― because either racial discrimination did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination.”
“As much as it had stung to be told I’d done well … despite my race, it was far worse to feel that I was now at Yale because of it.””
– Clarence Thomas, 2007
This all may sound eerily familiar to liberals who have familiarized themselves with contemporary literature steeped in critical race theory, like Ibram X. Kendi’s book “Stamped From the Beginning.” That’s because Thomas agrees.
“For Thomas, the most important form that racism takes is the stigma or mark it puts on black people, designating them as less worthy or capable than white people. … What distinguishes Thomas’s jurisprudence is that he accepts these liberal claims about the secret and no-so-secret life of race, while refusing the conclusions that liberals believe must follow from them,” the political theorist Corey Robin writes in his book “The Enigma of Clarence Thomas.”
He rejects what liberals believe must follow ― integration, diversity goals, affirmative action, equity ― because he says they only serve the interests of white people.
“[A]s the universities define the ‘diversity’ that they practice, it encompasses social and aesthetic goals far afield from the education-based interest discussed in Grutter,” Thomas wrote in his concurrence on Thursday.
His opinions on affirmative action are frequently peppered with talk of “aesthetics.” By this, Thomas means that the aesthetic appearance provided by a diverse student body at exclusive educational institutions serves only the interests of the rising white elite. If diversity means admitting more Black students because they are supposed to bring diverse perspectives, then the people they are bringing those perspectives to are the non-beneficiaries of affirmative action: white people. Therefore, affirmative action for Black people is meant only to help white people obtain an aesthetic air of racial diversity.
It also helps elite schools maintain their exclusivity. Harvard is only Harvard because it admits so few people, after all. Affirmative action provides a tool to increase racial diversity while keeping exclusive admissions policies.
In this way, affirmative action is a “solution to the self-inflicted wounds of [an] elitist admissions policy,” Thomas wrote in Grutter.
In his concurrence in Students for Fair Admissions, Thomas gathers these arguments and deploys them with great venom at the dissent written by Justice Ketanji Brown Jackson, the nation’s third Black justice. In her own dissent, Jackson not only outlines the history of gaps in opportunity that made affirmative action policies necessary but argues that it is a matter of respect for identity, in contrast to Thomas’ argument that affirmative action is inherently demeaning.
“To demand that colleges ignore race in today’s admissions practices — and thus disregard the fact that racial disparities may have mattered for where some applicants find themselves today — is not only an affront to the dignity of those students for whom race matters. It also condemns our society to never escape the past that explains how and why race matters to the very concept of who ‘merits’ admission,” she writes.
“[Thomas’ opinion] demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences,” Jackson continued in a footnote, before concluding: “[B]y insisting that obvious truths be ignored, [Thomas] prevent[s] our problem-solving institutions from directly addressing the real import and impact of ‘social racism’ and ‘government-imposed racism,’ thereby deterring our collective progression toward becoming a society where race no longer matters.”
Thomas, in turn, accuses Jackson of arguing that all outcomes are determined by race and the country’s history of racism. In envisioning this “black and white world (literally),” Thomas says that Jackson would hand over policy to a self-appointed elite class to use race to sort out the winners and losers.
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“Her dissent is not a vanguard of the innocent and helpless,” Thomas writes. “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.”
Though they do not say so, Jackson and Thomas may simply not believe in the same end point. Thomas argued in his concurrence and in the past that affirmative action policies hurt Black people by admitting them to schools that are a “mismatch.”
“[T]hose policies sort at least some blacks and Hispanics into environments where they are less likely to succeed academically relative to their peers,” Thomas wrote in his concurrence on Thursday, adding, “These policies may harm even those who succeed academically.”
Instead, Thomas believes that Black students should go to schools where they would not be “stamped” with the “stigma” of affirmative action and would find a match to help them succeed. What would that match be? Historically Black colleges and universities “demonstrate a marked ability to improve the lives of their students,” Thomas wrote in his concurrence.
“Why, then, would this Court need to allow other universities to racially discriminate?” Thomas asks. “Not for the betterment of those black students, it would seem. The hard work of HBCUs and their students demonstrate that ‘black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.’”
In his opinions and public comments, Thomas has long talked up the ills of integration and the promise of separation. “The whole push to assimilate simply does not make sense to me,” Thomas once said.
“I am the only one at this table who attended a segregated school,” The New Yorker’s Jeffrey Rosen reported Thomas to have said during deliberations on a desegregation case in 1995. “And the problem with segregation was not that we didn’t have white people in our class. The problem was that we didn’t have equal facilities.”
And instead, Thomas felt that affirmative action simply exposed him to social experimentation by white liberals.
“I have been the guinea pig for many social experiments on social minorities. To all who would continue these experiments, I say, ‘Please, no more,’” Thomas said in a 1986 speech.
As Robin writes in his biography of the justice, Thomas never left behind his Black radical politics of the 1970s. He has instead transmuted them into a deeply pessimistic conservative politics of race. White racism can never be overcome. Efforts to ameliorate historic racial inequalities are actually a new form of white racism and control. Integration is detrimental to Black people. Separation is the ideal.
Jackson, now representing an alternate view from the bench as a Black woman, takes a different view in her dissent when she says that affirmative action programs “reflect universities’ clear-eyed optimism that, one day, race will no longer matter.”
Thomas has now achieved one of his great career goals. It remains to be seen whether his vision for the future comes to pass.
