(By Will Consovoy, Consovoy McCarthy Park PLLC and Former Clerk to Justice Thomas)
Early in his tenure, Justice Thomas gave a speech in Memphis, Tennessee to the National Bar Association—one of the nation’s oldest organizations of African-American attorneys. In that famous speech, Justice Thomas claimed the right “to think for myself, to refuse to have my ideas assigned to me as though I was an intellectual slave because I’m black. I come to state that I’m a man, free to think for myself and do as I please. I’ve come to assert that I am a judge and I will not be consigned the unquestioned opinions of others.” In perhaps no other area of the law has Justice Thomas’s assertion of independence been more notable—and indeed more important—than with regard to affirmative action. No one has advocated more doggedly for Justice Harlan’s conception of a “color blind” Constitution than has Justice Thomas.
In Grutter v. Bollinger, a case in which the Supreme Court upheld the use of race as a factor in admissions decision at the University of Michigan School of Law, Justice Thomas’s dissenting opinion staked out a bright-line rule: The Equal Protection Clause of the Fourteenth Amendment prohibits universities from discriminating on the basis of race in making admissions decisions—either in favor of or to the detriment of African Americans and other minorities. Echoing Frederick Douglass, Justice Thomas explained “that blacks can achieve in every avenue of American life without the meddling of university administrators …. No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races.” Justice Thomas rejected the notion that a university’s purported interest in “diversity” could trump the command of racial equality. In upholding the Michigan law school’s use of race, Justice Thomas concluded, the Supreme Court had “placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.”
Justice Thomas returned to the issue of affirmative action in two cases from Louisville, Kentucky and Seattle, Washington involving the use of race for making secondary school assignments. Justice Thomas joined the Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School Dist. No. 1 rejecting this use of race. But he concurred separately to reiterate that any use of race to discriminate between students “is just as wrong today as it was a half-century ago.” He rejected the argument that the Supreme Court should defer to “faddish social theories” favoring racial preferences: “The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to ‘solve the problems at hand,’ the Constitution enshrines principles independent of social theories …. Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories.”
Last, in Fisher v. University of Texas at Austin, Justice Thomas joined the decision ruling against the University but again wrote separately to denounce any use of race in university admissions. Point by point, Justice Thomas demonstrated that the arguments made in favor of the “diversity” interest are “virtually identical” to those made in favor of segregation. “The worst forms of racial discrimination in this Nation,” he explained, “have always been accompanied by straight-faced representations that discrimination helped minorities.” In sum, “the Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination. This principle is neither new nor difficult to understand.”