Originally published by Stephen Dinan in the Washington Times, June 29, 2023

Black justices battle over meaning of equality in affirmative action case

Justice Clarence Thomas on Thursday offered a majestic view of America waiting to be unshackled from the evils of racial discrimination that began with slavery, persisted through segregation and most recently manifested in affirmative action.

PROGRAMMING NOTE: Mike Stenhouse will conduct a deep-dive interview for his In The Dugout vdeo podcast with one of the Ocean State’s premiere civil rights leaders, Ray Rickman. Check back on this article for scheduled broadcast times.

The time has come, he said, and the path was blazed by the U.S. after the Civil War with the 14th Amendment’s foundational guarantee of liberty to “any person.”

It’s a path the Supreme Court chose in its 6-3 ruling striking down university policies that give preference in admissions to Black and Hispanic students.

“Individuals are the sum of their unique experiences, challenges and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives,” wrote Justice Thomas, the court’s senior member.

“A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism,” he said.

To Justice Ketanji Brown Jackson, the court’s junior member, it was “ostrich-like” nonsense that reeked of “let-them-eat-cake obliviousness” toward what actually goes on at America’s schools and in its communities and corporate boardrooms.

“No one benefits from ignorance,” she wrote. “Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better.”

Justice Thomas and Justice Jackson are the court’s two Black members, the second and third ever to reach the court. Justice Thomas was appointed by a Republican president, George H.W. Bush, and Justice Jackson was nominated by a Democrat, President Biden.

They represent opposite ideological poles on the court, particularly on issues of race. The ruling on Thursday eviscerating the affirmative action policies at Harvard University and the University of North Carolina gave them a grand stage to square off over their visions of America.

Justice Thomas blasted race as a social construct that reduces people to economic, ability and political stereotypes.

“Of course that is false,” he said.

In buying into those stereotypes to fuel affirmative action, he said, schools are practicing their own form of segregation, increasing racial polarization.

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

Justice Jackson said the country isn’t ready for that.

“Our country has never been colorblind,” she wrote. “Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.”

She praised the universities for recognizing and trying to surmount their racist pasts and defended their drive for diversity. Everyone benefits when schools are free to stock their ponds with the right mix of students, she said.

“Do not miss the point that ensuring a diverse student body in higher education helps everyone, not just those who, due to their race, have directly inherited distinct disadvantages with respect to their health, wealth and well-being,” she said.

She added, “The larger economy benefits, too: When it comes down to the brass tacks of dollars and cents, ensuring diversity will, if permitted to work, help save hundreds of billions of dollars annually (by conservative estimates).”

“So much upside,” she wrote.

What about those who get chewed up and spit out for failing the race test, Justice Thomas wondered.

“How, for example, would Justice Jackson explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color?” he wrote. “History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation.”

Justice Thomas said he isn’t arguing that the county is free of discrimination but rather declaring that the law cannot be a source of that discrimination.

The alternative, he said, is a “never-ending cycle of victimization.”

“There is no reason to continue down that path. In the wake of the Civil War, the Framers of the Fourteenth Amendment charted a way out: a colorblind Constitution that requires the government to, at long last, put aside its citizens’ skin color and focus on their individual achievements,” he wrote.

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