Justice Clarence Thomas once again proved himself to be the intellectual leader of the Supreme Court with his scathing condemnation of the court’s ruling on Fisher v. University of Texas Monday.
Rather than filling several pages trying to conform to the tortured logic of previous court decisions justifying the use of race consideration in university admissions, as the majority did, Thomas laid out the case against racial discrimination as such, digging up quotes used by defenders of slavery and segregation that sound remarkably similar to excuses affirmative action defenders use today and making references to the court’s decision in the 2003 affirmative action case Grutter v. Bollinger.
For example, Thomas noted how slavery defenders used to argue that the institution actually benefits blacks. “Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually,” he wrote. Similarly, segregationists used to claim that school segregation helped blacks: “We shall get a finer, better balance of spirit; an infinitely more capable and rounded personality by putting children in schools where they are wanted.”
Nowadays, he said, we hear affirmative action defenders such as UT argue that race discrimination will allow blacks to feel more “secure,” be among their own kind, and take advantage of more “leadership opportunities.” Thomas rebutted those claims by asserting, “The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.”
Modern-day Democrats were no doubt horrified to hear themselves compared to slaveholders and segregationists—i.e. fellow Democrats. In fact, MSNBC’s Chris Hayes led into his Fisher segment Monday night with the line, “Guess who Justice Thomas compared to slaveholders and segregationists today? Me! And probably you, too…”
Though Justice Thomas concurred with the majority opinion—the Court was ruling on only a narrow aspect of Fisher—his stinging rebuttal of Grutter v. Bollinger constituted a de facto rejection of the majority’s decision. Only Associate Justice Ruth Bader Ginsburg dissented from the majority, and she was more than delighted to trust the University when it said its racial discrimination policy needed no further scrutiny.
Was the rest of the Court too deferential to Grutter? Six Justices conceded Grutter’s finding that courts must show universities “deference” in trusting that their race-based policies support their educational goals. Yet government should not be allowed to use race at all in hiring or acceptance decisions. Title VI of the Civil Rights Act of 1964 expressly banned race discrimination in programs that receive federal money, even though this prohibition has steadily been weakened by the Court over the years through cases like University of California v. Bakke and Grutter.
Only Justice Thomas saw fit to dissect the Grutter decision. His eloquent opinion and willingness to go against the crowd show him once again to be the unheralded intellectual leader of the conservative wing of the Supreme Court.
