Supreme Court ends affirmative action
Today, the Supreme Court ended affirmative action. It ruled that the 14th Amendment prohibits public colleges and universities from using racial preferences. And that the 1964 Civil Rights Act prohibits any school receiving federal funds from using race as a factor in admissions.
This case was the most controversial of the term. But this decision is anticlimactic. After all, the conservative justices who control the Court telegraphed their intent to end affirmative action years ago. That is, just as they did before ending a woman’s constitutional right to an abortion last term.
For the record, the majority rested its decision on the presumed unfairness of giving Blacks preferences over Asians, Hispanics, and, believe it or not, even over Whites. This reasoning is patently specious. It’s divide and conquer, pitting all other racial groups against Blacks. And it’s almost too cynical for words.
After all, the justification for affirmative action stems from centuries of slavery and decades of Jim Crow. Blacks are the only minority group to have endured such systemic harm. That’s why no other minority group is entitled to the remedy affirmative action offered. Moreover, fundamental fairness dictated that it should last for at least as long as slavery and Jim Crow did. Yet this Court has ruled, in effect, that justice in America means using 50 years of affirmative action to remedy 350 years of slavery and Jim Crow.
Meanwhile, the Court refuses to end the affirmative action that has benefited Whites since time immemorial. Of course, I refer to legacy preferences based on family ties and wealth
But nothing betrays the racism inherent in this decision quite like the Court exempting military academies from this ban on affirmative action. Because that says it’s okay to use affirmative action to prepare Blacks to fight for America. But it’s not okay to use it to prepare Blacks to excel in America.
Even so, the real story is not this decision. It’s Clarence Thomas, the justice who godfathered it.
Justice Thomas’s personal vendetta
Clarence Thomas is a disgrace wrapped in an ideology inside a conspiracy.
- He’s a disgrace to his race. After all, Thomas has used his power and influence on the Supreme Court primarily to undermine the civil rights of Black folks.
- He seems willfully devoted to the ideology of White Supremacy. After all, Thomas insists Blacks are only entitled to the civil rights the White men who drafted the Constitution granted. Those White men’s “original intent” was to treat Blacks as only three-fifths of a person. But Thomas couldn’t care less.
- He’s up to his neck in an unfolding political conspiracy. After all, his wife is complicit in the Jan 6 insurrection, and a billionaire GOP donor is treating him like a kept woman.
Those three paragraphs say all you need to know about Thomas’s tenure on the Supreme Court. They also explain this decision and why his jurisprudence is rooted in politics, not law.
Thomas has benefited from affirmative action more than any other Black American. Affirmative action helped him get into Holy Cross College and Yale Law School. And it helped him get nominated to the Supreme Court. Let that sink in.
Of course, most Blacks see affirmative action as an opportunity. But Thomas sees it as a stigma. He thinks it branded him as unqualified or unworthy. So imagine the resentment and self-loathing he felt in college and law school, thinking his White classmates saw him that way.
Then came his affirmative-action Supreme Court nomination. You might wonder why he accepted it. After all, he knew the whole world would see him as an affirmative-action nominee. But, for Republicans like him, hypocrisy has always been a virtue, not a vice.
President George H. W. Bush nominated him because Thomas was one of few token Blacks among the conservative intelligentsia. He had served as President Ronald Reagan’s Equal Employment Opportunity Commission chair. And, in that position, he distinguished himself by undermining affirmative action programs and hurling contempt at Blacks for “playing the race card.”
Except that Thomas is the only justice nominated to the Court recently who the ABA rated as only “Qualified.” That’s the equivalent of a passing grade. And the ABA probably rated him on a curve to boot. By comparison, the ABA rated every other sitting justice, including his fellow Black Ketanji Brown Jackson, “Well Qualified.” That’s the highest rating.
So, more than affirmative action, his poor academic and professional performance might be the cause of the stigma of inferiority Thomas decries. Yet he promotes himself as a self-made man. But that’s just his way of dealing with the pathology of self-hatred that haunts him.
That’s why it seemed a fateful irony that Thomas ended up playing the race card. It was the only way he could answer Anita Hill’s notorious allegations of sexual harassment.
President Joe Biden was the then chairman of the Judiciary Committee holding his confirmation hearing. The committee was all-White. And the last thing its members wanted to do was question Black Thomas about Black Hill’s allegations. Everyone could see that. But they had to.
Except that their deference meant nothing to Thomas. Presaging Donald Trump, he decided his best defense was a defiant offense. Here, in part, is the infamous way he preemptively disarmed the committee:
From my standpoint as a black American, as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the US Senate rather than hung from a tree.
(The Washington Post, October 12, 1991)
Nobody has ever played the race card better. But the public humiliation that hearing caused reinforced his resentment and self-loathing. And those feelings have informed every judicial opinion Thomas has written on matters of race.
Baiting voting rights and switching affirmative action
As it happened, the conservative justices set up today’s decision in a voting rights case a few weeks ago. The Court ruled that Alabama’s gerrymandered districts discriminated against Blacks. And that it constituted a violation of the Voting Rights Act.
Chief Justice John Roberts and Justice Brett Kavanaugh sided with the three liberal justices. Roberts and Kavanaugh clearly intended that 5-4 decision to be a consolation prize. That is, while they kept their eyes on the real prize of affirmation action.
But Thomas was too blinded by vengeance to see the “political” wisdom in this bait and switch. He dissented, taking 50 pages to rationalize Whites discriminating against Blacks. In doing so, he betrayed his abiding self-hatred in black and white. But I can sum up his dissent in one sentence:
- Suppressing the voting rights of Blacks is legal because that is consistent with the “original intent” of the framers of the US Constitution.
Of course, that is consistent with the vendetta Thomas launched 32 years ago. His original intent was to make all Blacks pay for those he claims conspired with White liberals to lynch him. And he has demonstrated time and again that his vendetta knows no bounds.
I have no doubt Thomas wanted to write the majority opinion in this affirmative action case. It would have been the crowning achievement of his tenure. But I suspect Chief Justice John Roberts knew he would only further embarrass himself and the Court. So Roberts wrote it himself. Except there was no stopping Thomas. He wrote a concurring screed for the record. And read it aloud from the bench today.
Political hacks in judicial garb
This decision is the latest example of the Court vesting Republican policies with legal authority. And this, even though conservative justices know those policies are turning America into a dystopian paradise.
Justice Jackson wrote a fact-based dissent that makes the conservative justices’ concurring opinions look like the unhinged rantings of racist, intellectual bullies. But, with all due respect to Jackson, arguments about the disparate impact race still has on educational opportunities for Black folks meant nothing to the majority. Facts do not matter when conservative justices are merely codifying Republican policies.
That’s why polls show that Americans no longer trust or respect the Supreme Court any more than they do the Republican Party. And Thomas has made it all too easy to cast him as the black sheep most responsible for the Court’s plummeting reputation. After all, he has godfathered decisions overturning abortion, expanding gun rights, and limiting voting rights. And he has telegraphed the Court’s intent to abolish gay and interracial marriages.
These are all activist decisions by conservative justices. (Again, the hypocrisy is the point.) And they give credence to the thesis of Michael Waldman’s new book, The Supermajority: How the Supreme Court Divided America.
But, just like their conservative confederates in Congress, conservatives on the Court are only interested in executing their right-wing agenda. The welfare of the country be damned.