As the Prospect's Jamelle Bouie notes, yesterday the Supreme Court finally released Fisher v. University of Texas, its long-awaited affirmative action ruling and ... mostly decided not to decide. There is surely a juicy story waiting to be uncovered about why the Court took eight months to issue a ruling that barely took up 40 pages and left the current state of the law essentially untouched. (It's hard not to suspect that a coalition favoring a much broader majority opinion ultimately crumbled.) In addition to the minimalist majority opinion, however, there was a concurrence by Justice Clarence Thomas—who agreed with the majority that the case should be sent back to the lower court, but for different reasons—that laid out the case for ruling affirmative action unconstitutional in essentially all circumstances. This concurrence is worth attending to, because it inadvertently lays out the fundamental weakness of the case against affirmative action.
Perhaps the most salient feature of the Thomas concurrence, considering that it comes from the member of the Court with the strongest avowed to commitment to "originalism," is the uttter lack of any serious discussion about the historical origins and purposes of the 14th Amendment. As I've pointed out before, the reason for this is obvious: There's no serious "originalist" argument to be made against affirmative action. There's no reason to believe that the framers and ratifiers of the 14th Amendment intended to eliminate all racial consciousness (as opposed to at least some forms of racial subordination) from state laws. As Justice Thurgood Marshall noted in his opinion in the landmark affirmative action case Regents of California v. Bakke, "Since the Congress that considered and rejected the objections to the 1866 Freedmen's Bureau Act concerning special relief to Negroes also proposed the Fourteenth Amendment, it is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief measures."
The original understanding of 14th Amendment can be interpreted as forbidding all state affirmative action only if the principles of equal protection are defined at such a high level of abstraction that there's no meaningful distinction between "originalism" and any other form of constitutional interpretation. Even worse for Thomas, he believes that it's unconstitutional for the federal government to practice affirmative action. Since the 14th Amendment did not apply directly to the federal government, this requires a belief that the 5th Amendment was understood in 1789 as forbidding any racial classifications—a patent absurdity.
Of course, for those of us who aren't originalists, the fact that there is no decent originalist argument against affirmative action doesn't settle the question. (After all, a theory of original understanding with any content would also compel the conclusion that Brown v. Board was unconstitutional.) So, leaving aside the fact that Thomas presents no historical evidence for his reading of the 14th Amendment, is his argument convincing?
It isn't, for the obvious reason that it's based on an entirely false premise: that racial classifications intended to alleviate the effects of past racial subordination are identical to those intended to establish a caste system. As Justice Stevens put it, "There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination." Even if one ultimately opposes affirmative action on policy or constitutional grounds, the idea that considering race in university admissions is the equivalent of disenfranchisement and second-class citizenship status cannot bear even cursory scrutiny.
While Justice Thomas's concurrence has nothing to say about the history of the 14th Amendment, he does extensively detail the history of defenders of segregation insisting that unjust discrimination was really in the interests of those being discriminated against. To Thomas, the lesson is that the benign motives of affirmative action are beside the point: "The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities."
The problems with this facile "gotcha" are also plainly evident. The crucial difference is that the paternalistic justifications for segregation were offered almost exclusively by the dominant caste. Only in the fantasies of segregationists did African-Americans believe that segregation was good for them, which is why disenfranchisement was necessary to maintain the system. Conversely, African-Americans today overwhelmingly support affirmative action. Thomas isn't just comparing white university administrators to Jim Crow apologists; he's comparing the heroes of the civil rights movement to Jim Crow apologists. It's possible that Martin Luther King and John Lewis are wrong about affirmative action and Strom Thurmond and Jesse Helms happened to be right, but to argue that the former are more comparable to segregationists than the latter is specious in the extreme.
The obvious differences between the pre- and post-Jim Crow eras provide another reason to be skeptical about ruling affirmative action problems unconstitutional. As the late legal scholar John Hart Ely pointed out, the case for active judicial review in applying ambiguous constitutional provisions is strongest when the majority is engaged in self-dealing that disadvantages relatively underrepresented minorities. (Jim Crow is the paradigmatic example.) Affirmative action, conversely, generally involves majorities imposing disabilities on themselves. In such a context, there is good reason for courts to be relatively differential. Whether one agrees with the policy arguments that Thomas mounts against affirmative action, or with the social scientists who have critiqued these arguments, such disputes are better resolved by more accountable public officials absent a more compelling case for judicial intervention.
Justice Kennedy's majority opinion in Fisher is significantly less deferential than I would prefer. Like Justice Ginsburg, I do not believe that affirmative action programs should be subject to the same constitutional scrutiny as laws that unjustly discriminate against a disadvantaged class, and with this assumption, Texas's modest program easily passes constitutional muster. Under Kennedy's formula, which requires the application of strict scrutiny, it will almost certainly be ruled unconstitutional. Nonetheless, given that the only possibilities to obtain 5 votes were maintaining the status quo and joining Thomas to rule affirmative action programs categorically unconstitutional, it must be considered a modest victory.
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