Ketanji Brown Jackson Blasts Clarence Thomas in Affirmative Action Dissent

Supreme Court Justice Ketanji Brown Jackson had some sharp criticism for her colleague Clarence Thomas in her dissent from Thursday’s ruling overturning college affirmative action programs.

Thomas “demonstrates an obsession with race consciousness” and “ignites too many more straw men to list, or fully extinguish, here,” Jackson, the first Black woman on the court, wrote in a footnote to her dissent.

By a vote of 6-3, the high court found that an affirmative action program at the University of North Carolina violated the U.S. Constitution’s equal protection clause because it considered race as a factor in admissions. The majority consisted of all the court’s conservative justices, the minority the three liberals — Jackson, Sonia Sotomayor, and Elena Kagan.

The court found the same in a 6-2 vote on a similar program at Harvard College, with the same conservative-liberal split, except that Jackson recused herself from that case because of her Harvard connections. She attended Harvard as both an undergraduate and a law student, and recently served on its Board of Overseers. A conservative group called Students for Fair Admissions had sued both schools. The majority, concurring, and dissenting opinions are available in one document here.

Chief Justice John Roberts wrote the majority opinion. He likened the university programs, which are aimed at diversifying the student body and increasing the number of students from historically marginalized groups — that is, rectify past discrimination — to earlier policies that enforced racial segregation and oppression, especially of African Americans. “Eliminating racial discrimination means eliminating all of it,” he wrote.

Since ruling in 2003 in Grutter v. Bollinger, which allowed affirmative action in admissions within certain parameters, “the Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must — at some point — end,” Roberts wrote. “Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.”

Thomas, well known for his anti-LGBTQ+ and generally far-right views, wrote a concurring opinion that ran for 55 pages, and he read it aloud, which is a rare occurrence in the court. “I write separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race — including so-called affirmative action — are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination,” he asserted.

He said neither university could explain how diversity benefits students and, like Roberts, likened affirmative action to past discrimination. “The Constitution continues to embody a simple truth: Two discriminatory wrongs cannot make a right,” he wrote.

“Both Harvard and UNC have a history of racial discrimination,” he went on. “But, neither have even attempted to explain how their current racially discriminatory programs are even remotely traceable to their past discriminatory conduct. Nor could they; the current race-conscious admissions programs take no account of ancestry and, at least for Harvard, likely have the effect of discriminating against some of the very same ethnic groups against which Harvard previously discriminated (i.e., Jews and those who are not part of the white elite).”

“Racialism simply cannot be undone by different or more racialism,” Thomas continued. Instead, the solution … is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our 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.”

He then responded to Jackson’s dissent. “Justice Jackson has a different view,” he wrote. “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 as necessary to ‘level the playing field,’ all as judged by racial metrics. I strongly disagree.”

He agreed “that our society is not, and has never been, colorblind,” but he said that “any statistical gaps between the average wealth of black and white Americans is constitutionally irrelevant.” Jackson, he said, “uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims.”

However, Jackson wrote that Thomas “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,” she continued. “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?”

He “ignites too many more straw men to list, or fully extinguish, here. 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. 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.”

Liberal Justice Sonia Sotomayor also wrote a dissenting opinion, which Brown and Justice Elena Kagan joined. “Allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity … has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses,” she wrote. “Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown’s vision of a Nation with more inclusive schools.” She was referring to Brown v. Board of Education, the 1954 Supreme Court decision that ruled against racial segregation in public schools.

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” she added, as it “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”