A Revealing Supreme Court Dialogue on Race between Justices Jackson and Thomas

By Christopher Mills

Thursday, July 06, 2023

 

Last week, the Supreme Court decided Students for Fair Admissions v. Harvard, vindicating the promise of equal protection by ending race-based admissions in higher education. The majority opinion by Chief Justice Roberts declared that “distinctions between citizens solely because of their ancestry” are “by their very nature odious to a free people.” Commentators have focused on a striking exchange between Justice Thomas in his concurrence and Justice Jackson in her dissent. Perhaps the most revealing feature of Justice Jackson’s response to Justice Thomas is the extent to which it mirrors the common responses offered by the cultural elites whenever their faddish critical-race-theory view of America is criticized. Though this theory hides under many names (“CRT is just a law school class!”), its basic premise is that historical injustices and alleged present disparities justify ongoing discrimination based on race. Even as Justice Jackson built her dissent around this race-centric view, she — like school districts and educational elites around the country — simultaneously denied pressing the theory, pretended the theory was purely factual, and lobbed accusations that the person advocating equal treatment was actually race-obsessed.

 

Citing statistics pertaining to wealth, employment, and housing, Justice Jackson proclaimed that “the race-based gaps that first developed centuries ago are echoes from the past that still exist today.” She argued that “the justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society.” Noting that “race still matters to the lived experiences of all Americans,” Justice Jackson said that “the only way” to solve these gaps “is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field”—i.e., discriminate based on race. There is little new here. Anyone who has sat through a DEI PowerPoint or read Ibram Kendi (“When I see racial disparities, I see racism”) will recognize the usual reduction of societal issues to skin color. (See an amicus brief I filed on behalf of Parents Defending Education for many examples of the theory in practice.)

 

In devastating fashion, Justice Thomas responded. He agreed that “our society” “has never been colorblind” even as he emphasized that the law “must disregard all racial distinctions,” praising our “colorblind Constitution” as the “way out” of the “never-ending cycle of victimization.” Justice Thomas showed that none of Justice Jackson’s “statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes.” Justice Thomas continued: “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.” Yet 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.” Her “myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.” (You should read the entire section, pages 49 through 55 of his opinion.)

 

Justice Jackson’s footnote response to Justice Thomas echoes the usual critical-race-theory dissembling and obfuscation. First, she claims that “Justice Thomas responds to a dissent I did not write,” then proceeds to defend the points that she (supposedly) did not make. For starters, she insists that the “historical [and] present fact[s] about the origins and continued existence of race-based disparity” cannot be disputed. A similar response is often the first fallback employed by the critical race elites: pretending that they are just describing history and facts, rather than making unsupported inferences and normative prescriptions based on a race-centric worldview. Putting aside that the statistics Justice Jackson presents cannot show that alleged disparities are “race-based” in the relevant sense — somehow caused by race — the question is whether the law permits discrimination based on race, or rather requires the government to treat people equally. Neither statistics nor “the experts” can answer that constitutional question.

 

The next fallback comes courtesy of the DEI industry’s doyenne, Robin DiAngelo, a white woman whose book White Fragility equates any criticism of critical race beliefs with racist “self-defense” and an admission of guilt. Though Justice Jackson can hardly lob an accusation of racial guilt at Justice Thomas, whose ancestors were West African slaves, she claims that his opinion “demonstrates an obsession with race consciousness that far outstrips my . . .  understanding.” A strange accusation in many ways, especially coming from an opinion premised on a “need for such race consciousness.” But this is the topsy-turvy world of critical race theory: criticize the theory and be viewed as having proved one’s guilt and the underlying theory, say nothing and be viewed as complicit, or even speak in support and be accused of “decentering” others’ “lived experiences.” Thus, DiAngelo says that white racial “fragility” “manifests itself” in “intellectualizing,” “explaining,” and “silence.” Likewise, one CRT schoolhouse staple, This Book Is Anti-Racist, admonishes “white people” to “step aside” and “pause before you talk”: “Black, Indigenous, and other Folx of the Global Majority” should “go to the head of the line” and “speak first.”

 

Justice Jackson’s next move is to redefine the goal as “Americans’ shared pursuit of true equality” (emphasis added), which must be achieved through “our problem-solving institutions . . . addressing the real import and impact of ‘social racism’ and ‘government-imposed racism.’” The tell for redefining equality from colorblindness to race-based discrimination is usually the term “equity,” though Justice Jackson uses “true equality.” Either way, the term means the opposite of equality. It means (as Kendi says) “present discrimination”: “treating, considering, or making a distinction in favor or against an individual based on that person’s race” in pursuit of some utopian equality-of-outcome world. In the same way, educational elites use “antiracism” to mean differential treatment based on race.

 

Eventually, Justice Jackson gives up, stating that Justice Thomas “ignites too many more straw men to list, or fully extinguish, here” and broadly accusing him of “demand[ing] that no one think about race.” Supreme Court opinions have no word limits. At any rate, this too echoes the usual CRT dissembling. Having packaged the CRT worldview as “just history” and shamed doubters into silence, the CRT elites refuse to engage on the merits. Far easier to pronounce dissenters racists and white supremacists, mischaracterize their arguments, instruct them to “do the work,” and end the conversation.

 

Fortunately, the Court did not go Justice Jackson’s way. Rather, the Court recognized the difference between racial discrimination and treating people equally, reaching a decision that reflects “the core purpose of the Equal Protection Clause: doing away with all governmentally imposed discrimination based on race.” As Chief Justice Roberts wrote for the Court, “Eliminating racial discrimination means eliminating all of it.”