In two decisions this week, Justice Clarence Thomas has issued concurrences that he would go even further than the Supreme Court's most conservative members and abolish any government action that takes into account a person's race, including (and especially) programs meant to redress racism. Just how far is he willing to follow that argument?
On Monday, in Fisher vs. University of Texas, while the Court's 7-1 majority (including Thomas) upheld the aims of the school's affirmative action program, it sent the case back to the Fifth Circuit so that the program itself can be judged under a "strict scrutiny" standard "to prove its admissions program is narrowly tailored to obtain the educational benefits of diversity." In his concurrence, however, Thomas wrote that he would have overturned precedent and struck down the admissions program altogether because, "I think the lesson of history is clear enough: Racial discrimination is never benign."
On Tuesday, in Shelby County vs. Holder, the narrower 5-4 majority, including Thomas again, struck down the section of the Voting Rights Act that determined which jurisdictions must pre-clear their election laws with the federal government. Thomas again went further than the rest of the majority: he would have ended pre-clearance altogether because, aside from affirmative action programs like at the University of Texas, there is so little racial discrimination. "Today, our Nation has changed … circumstances in the covered jurisdictions can no longer be characterized as 'exceptional' or 'unique.'"
His is an absolutist position. In his Fisher concurrence, he writes that it is a "simple, yet fundamental, truth" that "no benefit in the eye of the beholder can justify racial discrimination." No federal monitoring of voter laws. No affirmative action in university admissions. Thomas spent much of his 20-page concurrence in Fisher (the Court's main opinion ran just 13 pages) building the point that many of the arguments showing that affirmative action is good for minority students were made by those defending school segregation. "Slaveholders argued that slavery was a 'positive good' that civilized blacks and elevated them in every dimension of life," he wrote.
The root of Thomas' no-discrimination-ever position is his belief, which he has repeated many times, that using race in the law is a bad idea because white people might change their mind about being nice to black people. "The Constitution does not pander to faddish theories about whether race mixing is in the public interest," he wrote in his Fisher concurrence. In his 2007 memoir, he writes about how, when he was in college at Holy Cross, he opposed "preferential policies for blacks" because "I foresaw a time when it would no longer be fashionable to give blacks a helping hand, especially after the generation who remembered segregation was gone." In Shelby County, he seems to suggest that time has come.
For much of his 22 years on the Supreme Court, Thomas has been trying to convince at least four other justices to adopt his position abolishing any kind of racial discrimination. But the consistency of his rulings on the bench brings to mind when he was free to make decisions on his own, such as when President George H.W. Bush asked him to be his nominee to the Supreme Court. "There's no reason Thomas should have been expected to turn down the jobs simply because his race played a part in getting them," wrote Newsweek's Weston Kosova in 2007, "But his public opposition to affirmative action requires him to go through extraordinary—and not terribly convincing—contortions to prove that it didn't play any part at all." Especially when, by the standards of his own rulings on the Court, he argues so strenuously for turning the nomination down.
At the time Thomas was nominated, there had been 105 U.S. Supreme Court Justices and all but one of them, Thurgood Marshall — the justice who Thomas was nominated to replace — had been white. As Thomas wrote in 2007, "Because I had been tapped to succeed Justice Marshall, it was inevitable that many people would assume that race had played a role in my selection. (The second question that President Bush was asked after announcing my nomination at Kennebunkport was whether his decision had been 'quota based.')" He relented, he wrote, because, "I was sure that I could do the job, but there was no way I could really know what the President and his aides had been thinking when they picked me." But under the "strict scrutiny" standards Thomas would apply to (and abolish) the University of Texas' affirmative action program, is that enough?
Was race a factor in Clarence Thomas's nomination?
At the time, Bush said no: "The fact that he is black and a minority has nothing to do with this. He is the best qualified at this time." But while Thomas may not have had any way of really knowing what Bush and his aides were thinking when he was picked, but every political reporter in the country seemed to. The New York Times wrote of Bush's political calculus, "By selecting a black to fill a seat vacated by a black, the president has demonstrated his willingness to seek qualified minority group candidates. But because Judge Thomas opposes racial quotas, Mr. Bush at least deflects any suggestion that he approves of racial or ethnic quotas on the court."
Leading up to Thomas' nomination, if you had picked up any national newspaper in 1991, you would have read about an overwhelming pressure on Bush to pick a minority to replace Marshall. So much so that Justice Marshall even addressed it himself in this 1991 story from the Toledo Blade:
Notice that last line: "regardless of stature." President Bush was using race and gender to fill out his short-list. You also did not have to look very far to find the White House actively feeding this perception that it was using race as a factor. "Over the weekend, the White House had actively encouraged the impression that Mr. Bush would appoint a Hispanic judge, a step that could bolster Republican gains among Hispanic voters in Texas, Florida and California," reads a New York Times, showing the type of of political momentum that the decision could generate.
Two decades later, Justice Thomas is emphatic that this approach would have been indefensible. Writing in Fisher, he declared, "Attaining diversity for its own sake is a nonstarter. … the pursuit of diversity as an end is nothing more than impermissible 'racial balancing.'"
Of course, as Thomas wrote, it's impossible to know just what Bush was thinking. Thomas chose to take the President at his word. But in his Fisher opinion, he presumed the worst of the University of Texas' intentions of its admissions policy. "I suspect that the University’s program is instead based on the benighted notionthat it is possible to tell when discrimination helps, rather than hurts, racial minorities."
Was there a compelling public interest in considering Clarence Thomas' race in his nomination?
In Thomas's opinion on Fisher, he argues that the only situation when a person's race can be considered under strict scrutiny is when there is a "compelling public interest" or "pressing public ncessity" and he defines those terms quite narrowly.
Citing his own dissent to the 2003 Grutter vs. Bollinger decision about the University of Michigan Law School's affirmative action policy (which he would overturn), he writes, "I explained that 'only those measures the State must taketo provide a bulwark against anarchy, or to prevent violence, will constitute a "pressing public necessity" sufficient to satisfy strict scrutiny.'" That's why he cites Korematsu v. United States—when the Supreme Court sided with the U.S. in sending Japanese people to internment camps. "As should be obvious, there is nothing 'pressing' or 'necessary' about obtaining whatever educational benefits may flow from racial diversity," Thomas writes.
As well-loved as Thurgood Marshall was, the United States was not plunged into a national security emergency when he announced that he was going to be leaving the bench.
Were others harmed by the consideration of race in Clarence Thomas's nomination?
After Thomas' nomination, the American Bar Association did not give him their highest rating of "well qualified," choosing to go with the second-tier "qualified." Alan Dershowitz, a frequent Fox News guest and liberal legal scholar, wrote in 1991, that Thomas is sort of like a second-round pick (as were Souter and Kennedy) behind a scholar like Robert Bork, who received a unanimous "well qualified" rating from the ABA:
In Thomas's Fisher concurrence he states that affirmative action has a history of causing harm: "There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race," Thomas writes. If Thomas and his fellow justices were "B+ students", according to Dershowitz, then there were two maybe three tiers of legal scholars ahead of them. And those people, aren't on the Supreme Court—that should have rubbed Thomas the wrong way.
Was Clarence Thomas harmed by the consideration of race in his nomination?
While Thomas believes that there's a grave injustice to white and Asian students at the University of Texas, he believes the greatest harm the University is doing is to the people it is trying to help. As he writes, "I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities." He continues, "There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University’s discriminatory admissions program is even more harmful."
That harm comes in two ways. First, quoting his Grutter dissent again, Thomas argues, "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 whichcase asking the question itself unfairly marks those . . .who would succeed without discrimination."
The second way is that unqualified applicants are forced to compete against overmatched qualified applicants. "Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates. In the University’s entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile."
So what's the total damage done to Clarence Thomas from the terribleness of affirmative action? Cruel embarrassment, writes Esquire's Charles Pierce. "He's a lifetime appointee to the highest court in the land, and he's still the dogged victim of a world he never made."
If Thomas feels so strongly about the damage done in his life and if his nomination isn't passing his own "strict scrutiny" test, then why doesn't Thomas overrule past wrongs? Well, the man's a lawyer, not a matyr.