By
Charles C. W. Cooke
Thursday,
June 29, 2023
One of
the many reasons that I have treated with reflexive contempt the insinuation
that Justice Clarence Thomas is in some meaningful sense “corrupt” is that
nobody has ever been able to explain to me to my satisfaction what
tangible product that corruption is supposed to have yielded.
Where, I have asked, is the evidence of inconsistency? In which of Thomas’s
opinions can I detect the caprice? What suspicious shift in jurisprudential
assumptions has hinted that something is off? I have never received an answer.
For better or for worse, Thomas is always Thomas. Come hell or high water,
condemnation or praise, momentum or inertia, his approach remains immediately
recognizable. He is dismissive of error, unmoved by precedent, and deaf to
political guile. There is one of him, and there will not be another any time
soon. Day in, day out, he does his thing, and, if you don’t like it, he doesn’t
care. He is an ideal candidate for the Supreme Court.
All of
these qualities are on display throughout Thomas’s concurrence in Students
for Fair Admissions, Inc. v. President and Fellows of Harvard College, a
case in which the Supreme Court has held, 6–3, that “Harvard’s and UNC’s
admissions programs violate the Equal Protection Clause of the Fourteenth
Amendment,” and, more broadly, that affirmative action is unconstitutional. I
will confess that, as a historical matter, I do not know whether Thomas’s
long-held interpretation of the 14th Amendment as a bluntly “colorblind”
measure is correct. I do know, however, that Thomas believes quite sincerely
that he is right, and that he has believed it for years. Had he so wished, Thomas could
have signed onto John Roberts’s opinion and left it there. That, I daresay, is
what a mere “movement” pawn would have done. Instead, Thomas felt moved to
“write separately to offer an originalist defense of the colorblind
Constitution” to which only he, among his colleagues, put his name.
In
Thomas’s telling, the original public meaning of the 14th Amendment was that of
a tool “affirming that equality and racial discrimination cannot coexist.” “I
do not contend,” Thomas concedes, “that all of the individuals who put forth
and ratified the Fourteenth Amendment universally believed this to be true.”
Nevertheless, he believes that enough of them did that, since it passed in
1868, “all forms of discrimination based on race—including so-called
affirmative action” have been “prohibited under the Constitution.” Alas, at
various points in American history, this has been massaged, subverted, or even
completely ignored. Indeed, the backsliding began pretty quickly. Despite the
flurry of legislation passed by the so-called radical Republicans — first, the
Freedmen’s Bureau Act, then the 1866 Civil Rights Act, and eventually the 14th
Amendment — “the promise of the second founding took time to materialize,” and,
“seeking to perpetuate a segregationist system in the wake of the Fourteenth
Amendment’s ratification, proponents urged a ‘separate but equal’ regime” that,
to disastrous effect, “met with initial success.” “The great failure of this
country was slavery and its progeny,” Thomas writes, “and, the tragic failure
of this Court was its misinterpretation of the Reconstruction Amendments” — a
misinterpretation that began as early as the mid 1870s. The latter failure, he
laments, “stood in sharp contrast to the Court’s earlier embrace of the
Fourteenth Amendment’s equality ideal,” which, though unrealized, was most
poignantly outlined by Justice Harlan in his lonely dissent in Plessy
v. Ferguson.
In
Thomas’s view, this mistake has continued, in one form or another, to the
present day, including in the courts’ tolerance of ostensibly benign racial
discrimination within America’s government-run and government-funded colleges.
Some people, Thomas notes, seem to believe that affirmative action is
substantially different from earlier forms of injustice, because, in practice,
the “[14th] Amendment forbids only laws that hurt, but not help, blacks.” But,
he avers, “such a theory lacks any basis in the original meaning of the
Fourteenth Amendment,” which declared that “the color of a person’s skin is
irrelevant to that individual’s equal status as a citizen of this Nation” and
that “to treat him differently on the basis of such a legally irrelevant trait
is therefore a deviation from the equality principle and a constitutional
injury.” If we are to stay faithful to the law, Thomas submits, “we cannot be
guided by those who would desire less in our Constitution, or by those who
would desire more.” That those who would opt out are elite colleges instead of
segregationists is irrelevant. “Universities’ self-proclaimed righteousness
does not afford them license to discriminate on the basis of race,” he affirms.
“In fact, it is error for a court to defer to the views of an alleged
discriminator while assessing claims of racial discrimination.”
Fleshing
out this idea, Thomas takes direct aim at the dissent of the newest justice,
Ketanji Brown Jackson, whose focus on “the legacy of slavery and the nature of
inherited wealth,” and desire “to label all blacks as victims” he considers not
just constitutionally irrelevant but culturally malign. Per Thomas, such
thinking “locks blacks into a seemingly perpetual inferior caste” and “is an
insult to individual achievement and cancerous to young minds seeking to push
through barriers, rather than consign themselves to permanent victimhood.” In
essence, Thomas’s approach echoes a line written by Chief Justice Roberts in
2007: “The way to stop discrimination on the basis of race is to stop discriminating
on the basis of race.”
That, at
long last, Thomas has been able to make his case as part of a successful
majority must thrill him to the core. Whether it will catch on more broadly now
that the underlying controversy has been resolved remains to be seen.
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