Supreme Court Cage Match : Thomas vs. Jackson on Affirmative Action and Race

The affirmative action decision by the Supreme Court presents two starkly different world views on the way forward for America on the subject of race. One view, the majority opinion, holds that any preference given on the basis of race is unconstitutional and unlawful, regardless of history, or the facts on the ground.

The other view, the dissenting minority, is that the constitution and our laws recognize that racial preferences can and should be a factor in righting the centuries long history of black slavery and discrimination against black Americans, the baleful effects of which persist to the current day.

I’m going to focus on the two opinions that “speak” in passionate opposition to one another: the concurrence of Justices Clarence Thomas striking down affirmative action and the dissent of Justice Ketanji Brown Jackson.

Let me state at the outset that I am in favor of affirmative action as a policy that attempts to help right the wrongs of American history. I believe that stewards of best-in-class institutions, whether universities or countries, have a moral responsibility to make amends for past sins.

That said, I see a rationale behind the majority decision. A strict, text-limited reading of the laws on the books, absent the context of why they were enacted, do prohibit preferences on the basis of any race, including preferences for blacks.

(I should confess that as a work of writing I find Justice Thomas’s concurrence to be a rambling, discursive mess. My hand trembled with an imaginary red pen as I read it.)

More importantly, here are the stark differences between the views of Thomas and Jackson:

Righting the Wrongs of the Past

To support any form of amends, Thomas would require that past discrimination “…be concrete and traceable to the [past legal] segregated system, which must have some discrete and continuing discriminatory effect that warrants a present remedy.” Further, “Our Nation should not punish today’s youth for the sins of the past.”

Taken together, I don’t see how Thomas could favor any amends or reparations, no matter how small.

Jackson, on the other hand sees progress and wants that progress to continue. “To be sure, while the gaps are stubborn and pernicious, Black people, and other minorities, have generally been doing better. But those improvements have only been made possible because institutions like UNC have been willing to grapple forthrightly with the burdens of history.”

She also is willing to effectively disadvantage some of today’s youth as a consequence of making amends. “Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well- documented “intergenerational transmission of inequality” that still plagues our citizenry.”

While I agree with her general sentiment­­­––– that affirmative action and other amends would be for the greater good of the country–––Jackson fails to acknowledge that racial preferences for blacks, whether in university admissions or hiring or contracting, axiomatically will deprive opportunities to some individuals of other races.

Are We as a Nation Today Colorblind?

Here the two Justices both say no!

Thomas: “I, of course, agree that our society is not, and has never been, colorblind.”

Jackson: “Our country has never been colorblind.”

Statistics of Current Racial Inequality in Health, Wealth, and Well-Being

Thomas does not accept the value of racial statistics.  “Nor does JUSTICE JACKSON’s statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes.”

Jackson quotes many statistics. Here are two I found instructive: “For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”

“…despite being about 13% of the population, Black people make up only about 5% of lawyers… Of the roughly 1,800 chief executive officers to have appeared on the well-known Fortune 500 list, fewer than 25 have been Black (as of 2022, only six are Black).

The Harm of Affirmative Action to Blacks

Thomas sees many harms; Jackson sees none. Here’s Thomas:

“I have long believed that large racial preferences in college admissions ‘stamp [blacks and Hispanics] with a badge of inferiority’.”

“…many blacks and Hispanics who likely would have excelled at less elite schools [are placed by affirmative action]. . . in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete.”

(I’ve seen Justice Jackson speak at her confirmation hearing and on other occasions. She’s brilliant. I’m convinced she does not share Justice Thomas’s fears of badges of inferiority or underperforming at an elite school.)

Finally, Thomas veers into bizarre hyperbole when he mysteriously finds in Jackson’s dissent things she did not write. He alleges that she wants 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.”

 And he further alleges, “As [Jackson] 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.”

Jackson’s accurate response to Thomas’s criticisms: “JUSTICE THOMAS’s prolonged attack responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted.”

I leave Judge Jackson with that last word.

And, given the long tenure ahead of her, I suspect Justice Jackson will one day have the final word when this decision is eventually overturned.

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