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Excerpted From: Ronald Turner, Disparate Treatment: Justice Clarence Thomas's Conspicuously Nonoriginalist Affirmative Action Jurisprudence, 19 Texas Journal on Civil Liberties & Civil Rights 251 (Spring, 2014) (211 Footnotes) (Full Document)


RonaldTurnerIn the eagerly anticipated but anticlimactic decision in Fisher v. University of Texas at Austin, the United States Supreme Court held that the United States Court of Appeals for the Fifth Circuit did not correctly apply the strict scrutiny standard of judicial review in assessing the constitutionality of the university's race-conscious undergraduate admissions process. By a 7-1 vote, the Court concluded that the Fifth Circuit “did not hold the University to the demanding burden of strict scrutiny” articulated in Grutter v. Bollinger and in Justice Lewis F. Powell Jr.'s opinion in Regents of the University of California v. Bakke. Justice Anthony M. Kennedy's majority opinion determined that the Fifth Circuit “confined the strict scrutiny inquiry in too narrow a way by deferring to the University's good faith in its use of racial classifications” and instructed the court of appeals to “assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” the Court's opinion, a concurring Justice Clarence Thomas, an avowed originalist, agreed that the Fifth Circuit did not properly apply strict scrutiny to the university's “use of racial discrimination in admissions decisions.” Moving beyond the Court's holding, and presenting an extensive critique of race-conscious affirmative action, he argued that Grutter should be overruled. absent from Justice Thomas's Fisher concurrence is any reference to originalism and an application of that interpretive methodology to the question whether race-conscious affirmative action violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. For an originalist, the correct method of interpreting the Constitution is to follow the original intent of the framers of the document, the original understanding of the ratifiers of the Constitution, or the “'original public meaning of the words and phrases as they would have been understood by ordinary English-language interpreters at the time they were adopted in that political and social context.”' Thus, when faced with, say, the question whether the Equal Protection Clause prohibits or permits race-conscious governmental action, the originalist would look to original intent, understanding, or public meaning. Nonoriginalism, on that view, is not a legitimate interpretive methodology.

Justice Thomas has previously declared that “when interpreting the Constitution, judges should seek the original understanding of the provision's text, if that text's meaning is not readily apparent.” In his view, originalism promotes judicial impartiality by reducing a judge's resort to discretion-based decision-making. If “judging is simply the exercise of personal discretion by a judge, then cases, legal rules, and, indeed, the law itself, is merely a product of the person and, more importantly, the social structure and class that produced him or her.”

According to Thomas, originalism reduces judicial discretion by

“plac[ing] the authority for creating legal rules in the hands of the people and their representatives rather than in the hands of the nonelected, unaccountable federal judiciary. Thus, the Constitution means not what the Court says it means, but what the delegates of the Philadelphia and of the state ratifying conventions understood it to mean. . . . We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change.”

many opinions, consistent with his aforementioned views, Justice Thomas interpreted the Constitution as an originalist, stating that the Court “ought to temper [its] Commerce Clause jurisprudence in a manner that . . . is more faithful to the original understanding of that Clause”; that the “history of public education suggests that the First Amendment, as originally understood, does not protect student speech in schools”; that the Court should return to the original meaning of the Establishment Clause; that the Court's takings decisions “have strayed from the [Public Use] Clause's original meaning”; that he would “look to history to ascertain the original meaning” of the Fourteenth Amendment's Privileges or Immunities Clause; that “the original meaning of the Fourteenth Amendment offers a superior alternative” to the “Court's substantive due process framework”; that the Court should return to the original meaning of the Ex Post Facto Clause “under which laws . . . are ex post facto only when they retroactively increase the punishment 'annexed to the crime”’; and that Supreme Court precedent distinguishing between facts that increase the statutory maximum sentence and those that increase the minimum “is inconsistent with . . . the original meaning of the Sixth Amendment.” previously noted,

Justice Thomas does not employ an originalist analysis when seeking an answer to the question whether certain race-conscious governmental actions violate the Constitution. Could originalism provide an affirmative answer to that question, an answer contrary to his stated position? Consider the following: “[T]he Reconstruction era Congresses produced a vast array of laws treating blacks preferentially, indicating its view that federal affirmative action violated no constitutional norms.” A race-conscious 39th Congress of the United States, the Congress that proposed the Fourteenth Amendment, “adopted a series of social welfare programs whose benefits were expressly limited to blacks.” Moreover, the Fourteenth Amendment's framers “rejected proposals to prohibit all racial classifications by the government” and “recognized that in certain contexts it was permissible to use race--indeed, to classify on account of race--to help ensure that educational opportunities were available to all regardless of race.” The Reconstruction framers also created the Freedmen's Bureau “to assist the newly freed slaves in the transition from slavery to freedom” with “clothing, food, fuel, and medicine . . . [and] schools and hospitals . . . [[and] rented them land.” The Freedman's Savings and Trust Company was established for “persons heretofore held in slavery in the United States or descendants.” And the Reconstruction Congress “gave money to destitute blacks, especially women and children, regardless of whether they were newly freed slaves.”

Given that history, one scholar has concluded: It is reasonable to suppose that an originalist would not, then, take issue with contemporary affirmative action plans aimed at inclusion rather than exclusion of racial minorities. But many originalists, including Justice Scalia and Justice Thomas, object to such plans on the ground that the Equal Protection Clause requires both states and the federal government to be colorblind. discussed herein, Justice Thomas's Fisher concurrence, like his other opinions in the Court's race-conscious affirmative action jurisprudence, is not an originalist opinion seeking and discerning the original intent, understanding, or public meaning of the Constitution. Not employing and therefore not meeting his stated standard of originalist and non-discretionary judging, Thomas's opinion tells us, not what the relevant framers thought, but what he thinks regarding the constitutionality of race-conscious affirmative action programs. While his views on this important subject warrant careful study and comment, it must be asked whether the Justice is “engaging in and committing the very act of judicial partiality . . . [he has] denounced.” Essay, addressing and answering in the affirmative the foregoing question, focuses on and critiques three nonoriginalist aspects of the originalist Justice Thomas's affirmative action jurisprudence: his argument that there is a moral and constitutional equivalence between laws designed to subjugate a race and laws that seek to provide benefits on the basis of race (discussed in Part II); his view that “unprepared” and “overmatched” beneficiaries of affirmative action are stigmatized and stamped with “a badge of inferiority” (discussed in Part III); and his invocation of Frederick Douglass and the first John Marshall Harlan as rhetorical support for Thomas's colorblind constitutionalism and anti-affirmative-action position (discussed in Part IV).

The Essay concludes with the observations that the personal and nonoriginalist views of Justice Thomas on the subjects discussed herein are, in all material respects, the same as Justice Thomas's opinions on those subjects. Moreover, the Justice's conspicuously nonoriginalist approach does not even attempt to discern the original intent, understanding, or public meaning of the Constitution as applied to governmental race-conscious affirmative action measures.

[. . .]

In his memoir My Grandfather's Son, Clarence Thomas provides a narrative of his life replete with instances of racial references, race-consciousness, and racism. Of particular interest here is Justice Thomas's decision to not seek admission to Morehouse College and Fisk University, two of the nation's prestigious historically black colleges and universities, because “both schools required applicants to send a photo” and Thomas had heard that those institutions “admitted only light-skinned blacks.” Discussing black students during his time at the College of the Holy Cross, Justice Thomas wrote:

Some black students gave up and stopped going to class, while others started using drugs or dabbling in cultlike Eastern religions. Their problem was that they lacked the social experience that would have made it easier for them to leave the comfort zone of segregation and move into the white world. Many of them, I suspected, might have done better had they gone to schools closer to home or to predominantly black colleges, which would have allowed them to grapple with the ordinary challenges of young adulthood without having to simultaneously face the additional challenge of learning how to live among whites. Yet Holy Cross, like other colleges across the country, continued to admit them in fast-growing numbers. also expressed his view that some of his black classmates at Holy Cross “thought that the mere existence of racial oppression entitled them to a free pass through college. . . . I foresaw a time when it would no longer be fashionable to give blacks a helping hand, especially after the generation of whites who remembered segregation was gone . . .” Believing that “many light-skinned blacks” considered “themselves to be superior to their darker brethren,” Thomas “thought that preferential policies should be reserved for the poorer blacks whose plight was used to justify them, not the comfortable middle-class blacks who were better prepared to take advantage of them--and . . . [that] the same policies should be applied to similarly disadvantaged whites.” However, he did not “think it was a good idea to make poor blacks, or anyone else, more dependent on government” as that would “amount to a new kind of enslavement” that would “prove as diabolical as segregation . . .” applying for admission to Yale Law School, Justice Thomas stated that he later realized that black beneficiaries of affirmative action “were being judged by a double standard.” sought to vanquish the perception that I was somehow inferior to my white classmates . . . . But it was futile for me to suppose that I could escape the stigmatizing effects of racial preference, and I began to fear that it would be used forever after to discount my achievements. Justice Thomas did not have a job offer at the end of the fall semester of the third year of law school, he concluded: “Now I knew what a law degree from Yale was worth when it bore the taint of racial preference. I was humiliated-- and desperate. The snake had struck.” He “learned the hard way that a law degree from Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it . . .” the Senate Judiciary Committee's hearings on his nomination to the Supreme Court, Justice Thomas told the Senators that the proceedings were

a circus. It is a national disgrace. And from my standpoint, as a black American, as far as I am 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 U.S. Senate rather than hung from a tree. and five years after he had assumed the seat on the Court vacated by Justice Thurgood Marshall's retirement, Justice Thomas asked C. Boyden Gray, President George H. W. Bush's counsel at the time of Thomas's appointment to the Court, “was I picked because I was black?” According to Justice Thomas, Gray replied that Thomas's race had worked against him as it had been planned to have Thomas replace Justice William J. Brennan Jr. “in order to avoid appointing [Thomas] to what was widely perceived as the court's 'black’ seat, thus making the confirmation even more contentious.” Thomas's personal views on issues of race and racism include, among other things, concerns about and opposition to race-conscious affirmative action; a belief that African-American beneficiaries of affirmative action are stigmatized by racial preferences and his perception that others viewed him as inferior to his white classmates; a likening of affirmative action to “enslavement” and racial segregation; his understanding that his Yale law degree was tainted by racial preference; and his supposition that black students would have done better had they gone to college closer to their homes or to predominantly black colleges and universities.

Justice Clarence Thomas's affirmative action jurisprudence is the same, in all material respects, as the personal views of Clarence Thomas. Consequently, Justice Thomas's jurisprudence in this important area of constitutional law can fairly be described as an example of that which he has criticized as legislative and not judicial conduct “the product of the person” unable or unwilling to exorcise “the passions, thoughts, and emotions that fill any frail human being.” What it cannot fairly be called is an originalist interpretation of the Constitution. “An originalist,” like Justice Thomas, “who believes the Constitution is 'colorblind’ should seek justification for that view not in general considerations of policy or fairness, but in the original understanding [or meaning] of the Equal Protection Clause.” The Justice's nonoriginalist colorblindness and anti-affirmative-action jurisprudence conspicuously fails to meet that standard.

Alumnae Law Center Professor of Law, University of Houston Law Center. J.D., University of Pennsylvania Law School; B.A., Wilberforce University.

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