WASHINGTON (CN) — A polarity on race in America played out between Justices Clarence Thomas and Ketanji Brown Jackson in a ruling Thursday that gutted the use of race in college admissions.
“It's an interesting fact that they are the two Black members of the court, who will hold such different views about the meaning of race and racism in American society,” Katherine Franke, professor of law and director of the Center for Gender & Sexuality Law at Columbia University, said in a phone call. “Those two opinions really crystallized those two different worldviews.”
Concurring with the ruling Thursday that Harvard and the University of North Carolina unconstitutional policies on affirmative action, the Bush-appointed Thomas endorsed a colorblind reading of the Constitution’s promise of equal protection.
“The Constitution’s colorblind rule reflects one of the core principles upon which our Nation was founded: that “all men are created equal,’” Thomas wrote.
Jackson argued meanwhile that this view ignores history as well as reality. As the Biden appointee sees it, race blindness widens opportunity gaps.
“The majority seems to think that race blindness solves the problem of race-based disadvantage,” Jackson wrote. “But the irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants like John and James will inevitably widen that gap, not narrow it. It will delay the day that every American has an equal opportunity to thrive, regardless of race.”
The dichotomy between Thomas and Jackson on equal opportunity is vast. Thomas focuses on what affirmative action does and what race means from an individualized perspective, while Jackson takes a structural and collective view.
“They take very different views about what it means to be a Black person in society and what kind of measures it's legitimate for states to take to dismantle the intergenerational legacies of slavery and structural racism,” Franke said.
For Thomas, the solution to the country’s infamous history of racism lies in avoiding racial classifications.
“Racialism simply cannot be undone by different or more racialism,” Thomas wrote. “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.”
Jackson says ignoring the scars left by the country’s racist history leaves open those old wounds.
“Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens,” Jackson wrote. “They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles — the ‘self-evident’ truth that all of us are created equal.”
The disagreement on how to contend with race in America sparked a heated exchange between the two justices. Thomas spent six pages of his opinion chiding Jackson’s dissent — a response she characterized as a “prolonged attack.”
Thomas portrayed Jackson as stuck on the historical subjugation of Black Americans.
“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, noting his strong disagreement.
He framed Jackson’s view as putting race in the driver's seat for nearly all of life’s outcomes. Thomas alleges that Jackson’s tallying of racial disparities amounts to labeling all Blacks as victims and denies the accomplishments of Black Americans.
“This lore is not and has never been true,” Thomas wrote. “Even in the segregated South where I grew up, individuals were not the sum of their skin color.”
Jackson does not spend a single paragraph of her dissent addressing Thomas’ rebuke, instead relegating her response to a footnote. She claims Thomas’ opinion reprimands her for a dissent she did not write.
“He does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of ‘individual achievement,’” Jackson wrote.
She says Thomas demonstrates an obsession with race consciousness that goes far beyond what the universities’ policies represent.
“How else can one explain his detection of ‘an organizing principle based on race,’ a claim that our society is ‘fundamentally racist,’ and a desire for Black ‘victimhood’ or racial ‘silo[s]’ in this dissent’s approval of an admissions program that advances all Americans’ shared pursuit of true equality by treating race ‘on par with’ other aspects of identity,” Jackson asked.
With his colorblind approach to ignoring race, Jackson said Thomas ignores the nation’s problems.
“The takeaway is that those who demand that no one think about race (a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room — the race-linked disparities that continue to impede achievement of our great Nation’s full potential,” Jackson wrote (parentheses in original).
Follow @KelseyReichmann
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