Clarence Thomas wrote an epic and monumental 58-page Concurring Opinion in the Harvard/UNC case.
Did I say Epic. I meant EPIC!!!
Unlike Justice Ketanji Brown Jackson (KBJ), whose dissent read like a furious letter to the college newspaper or chants at a rally. Or a seminar on CRT. She talked about “lived experience” and the majority’s “let them eat cake” attitude. And the left loved it.
Justice Thomas was having none of it. But first he laid the foundation (emphasis added):
In the wake of the Civil War, the country focused its attention on restoring the Union and establishing the legal status of newly freed slaves. The Constitution was amended to abolish slavery and proclaim that all persons born in the United States are citizens, entitled to the privileges or immunities of citizenship and the equal protection of the laws. Amdts. 13, 14. Because of that second founding, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting).
This Court’s commitment to that equality principle has ebbed and flowed over time. After forsaking the principle for decades, offering a judicial imprimatur to segregation and ushering in the Jim Crow era, the Court finally corrected course in Brown v. Board of Education, 347 U. S. 483 (1954), announcing that primary schools must either desegregate with all deliberate speed or else close their doors. See also Brown v. Board of Education, 349 U. S. 294 (1955) (Brown II ). It then pulled back in Grutter v. Bollinger, 539 U. S. 306 (2003), permitting universities to discriminate based on race in their admissions process (though only temporarily) in order to achieve alleged “educational benefits of diversity.” Id., at 319. Yet, the Constitution continues to embody a simple truth: Two discriminatory wrongs cannot make a right.
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… I join the majority opinion in full. I write separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination.
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Combining the citizenship guarantee with the Privileges or Immunities Clause and the Equal Protection Clause, the Fourteenth Amendment ensures protection for all equal citizens of the Nation without regard to race. Put succinctly, “[o]ur Constitution is color-blind.” Plessy, 163 U. S., at 559 (Harlan, J., dissenting).
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Despite the extensive evidence favoring the colorblind view, as detailed above, it appears increasingly in vogue to embrace an “antisubordination” view of the Fourteenth Amendment: that the Amendment forbids only laws that hurt, but not help, blacks. Such a theory lacks any basis in the original meaning of the Fourteenth Amendment.
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Properly understood, our precedents have largely adhered to the Fourteenth Amendment’s demand for colorblind laws.4
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In an effort to salvage their patently unconstitutional programs, the universities and their amici pivot to argue that the Fourteenth Amendment permits the use of race to benefit only certain racial groups—rather than applicants writ large. Yet, this is just the latest disguise for discrimination. The sudden narrative shift is not surprising, as it has long been apparent that “‘diversity [was] merely the current rationale of convenience’” to support racially discriminatory admissions programs. Grutter, 539 U. S., at 393 (Kennedy, J., dissenting). Under our precedents, this new rationale is also lacking.
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Without such guardrails, the Fourteenth Amendment would become self-defeating, promising a Nation based on the equality ideal but yielding a quota- and caste-ridden society steeped in race-based discrimination.
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Even taking the desire to help on its face, what initially seems like aid may in reality be a burden, including for the very people it seeks to assist. Take, for example, the college admissions policies here. “Affirmative action” policies do nothing to increase the overall number of blacks and Hispanics able to access a college education. Rather, those racial policies simply redistribute individuals among institutions of higher learning, placing some into more competitive institutions than they otherwise would have attended.
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Yet, in the face of those problems, it seems increasingly clear that universities are focused on “aesthetic” solutions unlikely to help deserving members of minority groups. In fact, universities’ affirmative action programs are a particularly poor use of such resources. To start, these programs are overinclusive, providing the same admissions bump to a wealthy black applicant given every advantage in life as to a black applicant from a poor family with seemingly insurmountable barriers to overcome. In doing so, the programs may wind up helping the most well-off members of minority races without meaningfully assisting those who struggle with real hardship.
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Finally, it is not even theoretically possible to “help” a certain racial group without causing harm to members of other racial groups…. As the Court’s opinion today explains, the zero-sum nature of college admissions—where students compete for a finite number of seats in each school’s entering class—aptly demonstrates the point. Ante, at 27.9 Petitioner here represents Asian Americans who allege that, at the margins, Asian applicants were denied admission because of their race. Yet, Asian Americans can hardly be described as the beneficiaries of historical racial advantages.
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Far from advancing the cause of improved race relations in our Nation, affirmative action highlights our racial differences with pernicious effect. In fact, recent history reveals a disturbing pattern: Affirmative action policies appear to have prolonged the asserted need for racial discrimination.
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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.
So far, so good, but it got better when Justice Thomas ripped apart KBJ’s dissent. While he criticized Sotomayor’s Dissent here and there, he let KBJ have it, devoting a long section of his concurring opinion to ripping her argument apart head on.
JUSTICE JACKSON has a different view. Rather than focusing on individuals as individuals, her dissent focuses on the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race. As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today. Post, at 1–26 (dissenting opinion). The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to “level the playing field,” all as judged by racial metrics. Post, at 26. I strongly disagree.First, as stated above, any statistical gaps between the average wealth of black and white Americans is constitutionally irrelevant….Yet, JUSTICE JACKSON would replace the second Founders’ vision with an organizing principle based on race. In fact, on her view, almost all of life’s outcomes may be unhesitatingly ascribed to race. Post, at 24–26. This is so, she writes, because of statistical disparities among different racial groups. See post, at 11–14. Even if some whites have a lower household net worth than some blacks, what matters to JUSTICE JACKSON is that the average white household has more wealth than the average black household. Post, at 11. This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race.***Accordingly, JUSTICE JACKSON’s race-infused world view falls flat at each step. 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. 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. JUSTICE JACKSON then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. 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.***Worse, the classifications that JUSTICE JACKSON draws are themselves race-based stereotypes.***Though JUSTICE JACKSON seems to think that her racebased theory can somehow benefit everyone, it is an immutable fact that “every time the government uses racial criteria to ‘bring the races together,’ someone gets excluded, and the person excluded suffers an injury solely because of his or her race.” Parents Involved, 551 U. S., at 759 (THOMAS, J., concurring) (citation omitted). Indeed, JUSTICE JACKSON seems to have no response—no explanation at all—for the people who will shoulder that burden….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.
An NBC News reporter in the courtroom when Justice Thomas read his concurring opinion described the look on KBJ’s face (emphasis added):
During Thomas’ lengthy concurrence, Justice Ketanji Brown Jackson, the first Black woman to serve on the court, did not look toward, or make eye contact once with Thomas, the second Black man to serve on the court. She sat in her seat at the end of the bench, looking straight ahead, taking occasional sips of her coffee.
She appeared to be visibly angry.
So be angry.
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