US Supreme Court’s two black justices clash over affirmative action ruling

US Supreme Court’s two black justices clash over affirmative action ruling
WASHINGTON, DC - OCTOBER 07: United States Supreme Court (front row L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, (back row L-R) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. The Supreme Court has begun a new term after Associate Justice Ketanji Brown Jackson was officially added to the bench in September. (Photo by Alex Wong/Getty Images)

June 29 (Reuters) - When liberal Justice Ketanji Brown Jackson became the first black woman to join the US 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.

By Andrew Chung

That dispute was front and centre on Thursday when the two justices publicly battled in sharply worded, duelling 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.

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.

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.



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.

“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.

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.


Comments - Please in order to comment.

  • blingtofling says:

    Very interesting …. but will wait for comments and debates by those with the capacity to debate this on an intelligent level. That is what makes Daily Maverick so interesting.

  • Stephanie Brown says:

    The USA desires to be a world leader, but I think is continually falling out of step in a world where levels of inequality are not only morally unacceptable, but pose real risk to social order and security. It is losing any moral authority it had in the past around democracy and now, in my view, it’s highest court. Can people really believe that judges have a level of objectivity with these so different interpretations of the law? Sadly, the courts have been drawn into the divisions which are threatening even democracy in the USA. I think the wheel will turn again, but not in my lifetime. I am old enough to remember the Clarence Thomas hearings – that he and Kavanagh were appointed was a blow to respect for the courts and the law. Assume they were innocent, the courts and the law are more important than any possible injustice done to them.

  • Thibault Moleux says:

    I believe, wonderful DM, that you forgot to mention two things:
    -> Polls for a few years now have shown that more than half of the Americans are not defending affirmative action anymore,
    -> the case started as US citizens with Asian heritage and excellent academics were not accepted at university whereas others not as brilliant managed to get in because of this law and the colour of the skin.

    The two justices, and this article, mention the back community (which has still millions of issues there that i do not deny) only but forget the latinos and the asian whom communities grew up a lot in the past decades and whose children sometimes have the best results.
    America has stopped been black and white only sometime ago. The others want some cake as well and deserve it.

    Like here, instead of judging on the skin, states should implement a better educational system available for everyone. And let’s based selection on academics only.

    • Thys Buitendag says:

      Good response Thibault

      • Terence Dowdall says:

        As I understood it, African American forebears were initially captured for enslavement by other African regional groups, traded to Arab slavers and purchased for selling on by American slave-traders. All of those groups should be involved in massive reparations if reparations are on the table. But the real elephant in the room, somehow completely ignored, is the original inhabitants of America – Native Americans, who were never docile enough to submit to being enslaved and were simply killed off one way or another. They do not have two, or one, or actually ANY members on the Supreme Court. There has been no Native American President of the United States, nor VP, nor defence secretary, nor generals, nor mayors, police chiefs, nor a thousand other prestigious jobs. They SHOULD be at the real forefront of aggrieved groups seeking reparations, but are simply ignored.

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