The Facts, the Law, and Lincoln
Justices Thomas and Jackson have a sharp exchange over university admissions.
Supreme Court opinions frequently take aim at one another. The justices share drafts, which gives them a chance to revise and sharpen their arguments, and often to respond directly to one another in the final versions.
This happened last year in the Supreme Court ruling that ended a constitutional right to abortion. Justices Sonia Sotomayor and Elena Kagan filed dissents showing why they felt the majority opinion was wrong. Justice Samuel Alito, author of that majority opinion, included claims not only that the dissenters were wrong, but that they knew he was right and were inventing new arguments to hide it.
The opinions on college admissions include an exchange between Justices Clarence Thomas and Ketanji Brown Jackson. I’m arranging some excerpts here, in hopes of capturing the flavor of their conversation.
The exchange pitted the Court’s most senior justice against the most junior; the most conservative justice against one of the few progressives; and the Court’s only two Black members against one another. Beyond the personalities (and the writing of each displays of lot) are very different ideas of race in America—and, at the end, a single point of near agreement.
Thomas leads off, having written a concurring opinion on the prevailing side. He asserts that affirmative action programs evaluate people as groups, while the law compels them to be considered as individuals. The Fourteenth Amendment, which forbade racial discrimination against Black people after the Civil War, was worded to forbid any discrimination based on race.
Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives, and goals, but with equal dignity and equal rights under the law.
For this reason, Thomas finds it wrong to give any weight to race as a factor in admissions. He goes further. He says that categorizing people by race isn’t possible in any meaningful way.
That is because race is a social construct; we may each identify as members of particular races for any number of reasons, having to do with our skin color, our heritage, or our cultural identity. And, over time, these ephemeral, socially constructed categories have often shifted. For example, whereas universities today would group all white applicants together, white elites previously sought to exclude Jews and other white immigrant groups from higher education… Yet, university admissions policies ask individuals to identify themselves as belonging to one of only a few reductionist racial groups.
It's hard to express how remarkable this is. For many years, progressives have argued that “race is a social construct.” They mean that there is no meaningful difference between one race of people and another: people have similar ranges of abilities, intelligences, and so forth. It is only society that pretends racial groups are different. “Race is a social construct” is a rebuttal to the old arguments in favor of slavery or segregation—that Black people were inferior.
“Race is a social construct” is also used as an argument for equity. If, for example, Black students as a group do worse than white students as a group on a standardized test, that cannot mean Black people are inferior, because human beings are basically the same. It means something is wrong with the test, and it should be disregarded.
Conservatives have often found this idea radical or wrong. But here, the conservative Thomas runs with it. His point is that no student should get an advantage just because “the applicant checks the box for ‘black.’”
In her dissent, Justice Jackson does focus less on individuals than on the outcomes for large groups of people. Her opinion begins:
Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal. Yet, today, the Court determines that holistic admissions programs like the one that the University of North Carolina has operated… are a problem with respect to achievement of that aspiration, rather than a viable solution (as has long been evident to historians, sociologists, and policymakers alike).
While Thomas says the Fourteenth Amendment forbids any distinction on account of race, Jackson reads the law and history differently: “Nothing in the Constitution… prohibits institutions from taking race into account.”
In this view, the Amendment guarantees racial equality, so institutions may take measures to ensure that guarantee. She says Thomas’s definition of the Fourteenth Amendment “has a wholly self-referential, two-dimensional flatness.”
And discrimination exists, she says.
Our country has never been colorblind. 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.
Justice Thomas responds.
Justice Jackson has a different view. Rather than focusing on individuals as individuals, her dissent focuses on the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race. As she 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…. The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means.
…With the passage of the Fourteenth Amendment, the people of our Nation proclaimed that the law may not sort citizens based on race… To now dismiss it as “two-dimensional flatness”… is to abdicate a sacred trust to ensure that our “honored dead . . . shall not have died in vain.” A. Lincoln, Gettysburg Address (1863).
In quoting Abraham Lincoln against his antagonist, Thomas contends that “Justice Jackson would replace the second Founders’ vision with an organizing principle based on race.” And the new vision, he adds, would never be realized. Suppose you discriminate against a Chinese person to make room for a Black person. Can’t the Chinese person sue for discrimination next? (In fact, the suit before the Court featured just such a claim.)
This provokes a response from Justice Jackson, which is inserted as a lengthy footnote.
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. He does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of “individual achievement.” Justice Thomas’s opinion also demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences.
How else can one explain his detection of “an organizing principle based on race,” a claim that our society is “fundamentally racist,” and a desire for Black “victimhood” or racial “silo[s]”… in this dissent’s approval of an admissions program that advances all Americans’ shared pursuit of true equality by treating race “on par with” other aspects of identity?
…Those who demand that no one think about race… refuse to see, much less solve for, the elephant in the room— the race-linked disparities that continue to impede achievement of our great Nation’s full potential. Worse still, by insisting that obvious truths be ignored, they prevent our problem-solving institutions from directly addressing the real import and impact of “social racism” and “government-imposed racism,” thereby deterring our collective progression toward becoming a society where race no longer matters.
Here, finally, is the point of near-agreement. Jackson says Thomas “does not dispute” the facts about discrimination. This is largely true. In general terms, he doesn’t. He does minimize their importance, and also says it’s not his job as a judge to solve discrimination.
Any statistical gaps between the average wealth of black and white Americans is constitutionally irrelevant. I, of course, agree that our society is not, and has never been, colorblind. People discriminate against one another for a whole host of reasons. But, under the Fourteenth Amendment, the law must disregard all racial distinctions.
Thomas, finally, falls back on his reading of the Fourteenth Amendment, which, in his view, causes all other arguments to fade away. His view has the votes; and so it prevails for this generation. Race as a factor in college admissions is out.
Thomas, like Chief Justice John Roberts in the main opinion for the majority, allows only a narrow exception. College applicants might, in describing themselves to a university, gain some credit for reporting how they overcame some racial barrier. But they would have to show that they did this, not as a member of a group, but as an individual.
Thanks for reading Differ We Must, my exploration of our modern-day differences. Differ We Must is my biography of Lincoln—which tells his life story through his meetings with people who disagreed with him. Needless to say, the Court’s opinions show his relevance! I hope you’ll preorder here.