Clarence Thomas Attacks Ketanji Brown Jackson Over Affirmative Action
Opinion by Katherine Fung, Newsweek, 6/29/23
The U.S. Supreme Court‘s two Black justices, Clarence Thomas and Ketanji Brown Jackson, sparred over the court’s decision in a pair of high-stakes affirmative action cases that will likely change the educational landscape for students from racial minority backgrounds across the nation.
On Thursday, the Supreme Court laid down one of the biggest reversals since overturning Roe v. Wade last year, striking down affirmative action admissions policies at colleges across the nation. Thomas joined the majority opinion, while Jackson was among the three liberal judges who dissented.
The court ruled in favor of Students for Fair Admissions, a conservative group that brought a pair of lawsuits against Harvard and the University of North Carolina at Chapel Hill (UNC) over their admission policies. The students argued that the affirmative action practices at the two colleges discriminated against white and Asian American applicants while favoring Black and Latino students. Jackson, a Harvard alum, recused herself from the case involving her alma mater but did participate in the UNC case.
In his concurring opinion, Thomas called out Jackson for her focus 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,” Thomas wrote.
“I strongly disagree,” Thomas said.
Jackson responded to Thomas’ “prolonged attack” in a footnote, saying he was referring to “a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted.” The dissent he was referring to was Justice Sonia Sotomayor‘s on the Harvard case, she said.
Jackson said Thomas’ concurring opinion “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.”
“The takeaway is that those who demand that no one think about race [a classic pink-elephant paradox] 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,” Jackson’s footnote reads.
In her own dissent of the UNC case, Jackson pointed to a number of statistics that show the wealth and health disparities between white and Black Americans, arguing, “Today’s gaps exist because that freedom was denied far longer than it was ever afforded.” Jackson warned that the majority opinion “will delay the day that every American has an equal opportunity to thrive, regardless of race.”
The arguments made by Student for Fair Admissions are similar to the ones used in previous affirmative action challenges, but each time, the Supreme Court allowed those policies to continue, determining that colleges have an interest in promoting diversity on campuses.
Proponents of affirmative action have warned that ruling in favor of the students could have devastating impacts on access to education. Some have pointed to California as an example of what could come for colleges across America.
Residents in California first voted to ban colleges from using a race-based admission approach in 1996—a decision that was upheld again in 2020. Since Proposition 209 passed nearly three decades ago, enrollment numbers for African American and Latino students never recovered to pre-1996 levels.
Colleges had already been ordered to narrowly apply affirmative action. Earlier Supreme Court rulings have prohibited colleges from imposing quotas for how many students of certain backgrounds are admitted and have required schools to consider other factors, like test scores and extracurricular activities.
The Supreme Court’s decision to rule against Harvard and UNC-Chapel Hill has suggested again that the court is no longer as concerned with precedent, and more willing to strike down landmark cases from the past. Just last year, the court issued a bombshell ruling that reversed the constitutional right to abortion granted in 1973.
Chief Justice John Roberts, who has become the court’s ideological middle since the court shifted to a 6-3 conservative supermajority, had already previously indicated that he would vote against the colleges.
“There have been four affirmative action cases during Chief Justice Roberts’ tenure, and he has voted against affirmative action in all four of them,” Alex Badas, a professor at the University of Houston, told Newsweek.
Because affirmative action has already been banned in Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington, Thursday’s ruling won’t have any impact in those states.