Neither Clarence Thomas nor Ketanji Brown Jackson wrote the majority decision in the US supreme court’s major ruling on Thursday ending race-conscious admissions at universities, but it was those two justices who issued the two most stinging – and mutually combative – opinions.
Both Jackson and Thomas wrote bluntly and personally about the role of race in American society and, unconventionally, used their respective opinions to sharply attack the vision of America that the other justice offered. Jackson wrote one of two dissenting opinions that all three liberal-leaning justices on the court signed on to. Thomas wrote a 58-page concurring opinion, nearly 20 pages longer than the majority opinion authored by Chief Justice John Roberts.
“Rather than focusing on individuals as individuals, her dissent focuses on the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race,” Thomas wrote in his opinion. “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.
“Worse still, Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me,” Thomas goes on to write.
Thomas and Jackson are both Black, on a nine-member bench. Justice Sonia Sotomayor, who is Latina, penned her own dissent, which was also joined by Jackson and Elena Kagan.
Jackson refers to Thomas by name three times, all in the same footnote. “Justice Thomas’s prolonged attack responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted,” she wrote, referring to the University of North Carolina, a defendant in one of the two affirmative action cases, the other involving Harvard but both with the same plaintiff, which on Thursday elicited one, sweeping opinion.
Jackson continued: “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’.
“Justice Thomas ignites too many more straw men to list, or fully extinguish, here. 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,” she wrote.
The opinion comes at the end of the first full term on the supreme court for Jackson, the first Black woman to serve as a justice. It’s a term in which she has emerged as a sharp questioner and writer on the bench. Thomas, the second Black man to serve on the court, had a term that was shaped by an ethics scandals, all while he has flexed more power on the court as a leading member of its rightwing majority.
Supreme court justices typically end a dissent with the words “I dissent” or “I respectfully dissent.” But Jackson’s dissent eschews that custom altogether, instead calling out the majority for allowing affirmative action at military academies but not universities and calling the court’s decision a “tragedy”.
“The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore),” she wrote.
“It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.”
