US Supreme Court's two Black justices clash over affirmative action
ruling
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[June 30, 2023]
By Andrew Chung
(Reuters) -When liberal Justice Ketanji Brown Jackson became the first
Black woman to join the U.S. Supreme Court, she was expected to bring a
different view on racial matters than Justice Clarence Thomas, its only
other Black member and a staunch conservative.
That dispute was front and center on Thursday when the two justices
publicly battled in sharply worded, dueling opinions as the court, in a
blockbuster decision, effectively ended affirmative action policies in
which colleges and universities consider race as a factor in student
admissions. Such policies have been used by many schools for decades to
boost their numbers of Black and Hispanic students.
Jackson and Thomas, reflecting a deep divide in the United States,
diverged on how race must be treated in the law. Jackson promoted its
use to reduce entrenched inequalities. Thomas contended that the U.S.
Constitution is colorblind.
Thomas wrote a concurring opinion accompanying the ruling that said
Jackson's "race-infused world view falls flat at each step." Thomas
suggested that instead of treating people as the sum of their
experiences and challenges, Jackson myopically focuses on "racial
determinism."
Jackson countered that it is Thomas who "demonstrates an obsession with
race consciousness."
"Our country has never been colorblind," Jackson wrote in her dissenting
opinion, which was joined by the two other liberal justices.
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George Mason University law professor Ilya Somin called the exchange
"fascinating," noting that "they draw such different conclusions from
the same history, even though both agree that Jim Crow (past segregation
policies aimed at Black Americans in some states) and slavery were
horrible forms of oppression at odds with Founding ideals."
"To some extent, the struggle that's going on is - who speaks for the
Black community on this court?" Cornell Law School Professor Michael
Dorf said. "Part of the undercurrent in his (Thomas's) response to
Justice Jackson is that, 'She doesn't speak for all Black people, and
she certainly doesn't speak for me.'"
The ruling - powered by the court's conservative majority and written by
Chief Justice John Roberts - held that the Harvard and UNC policies
violated the Constitution's 14th Amendment, which promises equal
protection under the law. The provision was ratified in 1868 in the
aftermath of the American Civil War and the emancipation of Black people
who had been enslaved by white people in Southern states.
'OSTRICH-LIKE'
Jackson, who was appointed last year by Democratic President Joe Biden,
portrayed the ruling as "ostrich-like," one that would "make things
worse," not better.
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![](../images/063023PIX/news_n18.jpg)
Judge Ketanji Brown Jackson testifies
during the third day of Senate Judiciary Committee confirmation
hearings on her nomination to the U.S. Supreme Court, on Capitol
Hill in Washington, U.S., March 23, 2022. REUTERS/Kevin Lamarque/File
Photo
![](http://archives.lincolndailynews.com/2023/Jun/30/images/ads/current/graue_lda_WHITETRUCKpreowned_062623.jpg)
"The only way out of this morass - for all of us - is to stare at
racial disparity unblinkingly, and then do what evidence and experts
tell us is required to level the playing field and march forward
together, collectively striving to achieve true equality for all
Americans," Jackson wrote.
"It is no small irony that the judgment the (court's) majority hands
down today will forestall the end of race-based disparities in this
country, making the colorblind world the majority wistfully touts
much more difficult to accomplish," Jackson added.
Jackson traced the history of racism that persisted from slavery to
the present day, preventing Black Americans from gaining wealth and
excluding them from opportunities in education and professional
life. Jackson noted, for example, that white families' median wealth
is eight times that of Black families.
Jackson, 52, said the majority's decision will widen gaps between
students and "delay the day that every American has an equal
opportunity to thrive, regardless of race."
Thomas, who is 75 and has served on the court since 1991, delivered
a defense of colorblindness - that the Constitution prohibits
actions that treat minorities differently, regardless of their
intent. Much of what Thomas wrote on Thursday was directed at
Jackson.
"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," Thomas wrote.
"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," Thomas added.
![](http://archives.lincolndailynews.com/2023/Jun/30/images/ads/current/nutrienag_sda_HEROES_2023.png)
Thomas cited his personal experience in supporting his arguments:
"Even in the segregated South where I grew up, individuals were not
the sum of their skin color. Then as now, not all disparities are
based on race."
In a footnote to her dissent, Jackson responded to Thomas's
critique, suggesting that he misconstrued her arguments.
"Justice Thomas ignited too many straw men to list, or fully
extinguish," Jackson wrote.
Jackson added that Thomas refuses to see the "elephant in the room"
- that race-based disparities continue to impede achievement for a
great number of Americans.
(Reporting by Andrew Chung in New York; Editing by Will Dunham)
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