In affirmative action, black judges target each other
In an extraordinary exchange Set among the pages of a landmark Supreme Court decision that illegalized race-conscious admissions to colleges and universities across the country, two black judges battled over the merits of affirmative action.
In sharp rebuttals, Justices Clarence Thomas and Ketanji Brown Jackson sharply criticized each other’s perspectives, reflecting the deep divisions and passions Americans have about the practice. Even though they seemed to agree on the policy’s goal—to remedy the long-standing discrimination and segregation of black Americans—they reached opposing conclusions about how and what to do.
Both judges were raised by black relatives who suffered from Jim Crow and segregation, and both gained admission to elite law schools (Justice Jackson to Harvard, Justice Thomas to Yale) before going to the Supreme Court. But their interpretation of the law and their understanding of affirmative action and its role in American life couldn’t be further apart.
In his concurring opinion, Judge Thomas directly called out Judge Jackson in a lengthy critique, expressing her views on race and broader criticism of liberal support for affirmative action.
“The way she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historic enslavement of Black Americans still shaping our lives,” he wrote.
In her dissent, Judge Jackson emphatically pushed back, denouncing his comments as a “prolonged attack” responding “to a dissent that I did not write to attack an admissions program that is not the one UNC created.”
She agreed that the couple did not disagree about the history or facts about racial disparity in the United States, but that they had come to completely different conclusions. Judge Thomas “is somehow convinced that this reality has no bearing on a fair assessment of ‘individual achievement,'” she wrote, adding that he is “igniting too many more stooges to list, or completely to extinguish.”
Their responses essentially boiled down to a fight over the enduring legacy of racism and persistent discrimination – and how best to address it.
Judge Thomas denounced Judge Jackson’s support for affirmative action, describing it as a panacea where society would “undoubtedly agree with the opinions of elite experts and redistribute society’s resources by racial means if necessary to ‘make it to level the playing field.”
While acknowledging that “our society is not and never has been color blind”, he deemed the wealth gap between black and white Americans “constitutionally irrelevant”. According to Justice Jackson, he wrote, “almost all outcomes of life can be attributed without hesitation to race.”
He then touched on a recurring theme in his writings and speeches over the years: his anger at black people being portrayed as victims.
He rejected statistics showing that the average white family earns much more than the average black family, arguing that such numbers unfairly portray black people as a monolith.
“This narration is not and never has been true,” he wrote. “Even in the segregated South where I grew up, individuals were not the sum of their skin color.”
He cited a 2016 book by Thomas Sowellan economist and prominent black conservative who has influenced Judge Thomas’s philosophy, and he accused Judge Jackson of using “broad observations about statistical relationships between race and selected measures of health, wealth and well-being to label all blacks as victims”.
He continued, “I cannot deny the great achievements of Black Americans, including those who succeeded despite great expectations.”
Justice Jackson’s stance, he said, would keep black people trapped in “a seemingly perpetual inferior caste.” He called that “an insult to individual achievement and cancer to young minds who want to break through barriers rather than surrender themselves to permanent victimization.”
He also wrote that she drew on “race-based stereotypes,” when in reality “all racial groups are heterogeneous, and Blacks are no exception—including Northerners and Southerners, rich and poor, and recent immigrants and descendants of slaves.” ”
By “literally articulating” her black-and-white world, he added, Judge Jackson ignored the experiences of other groups, including Chinese immigrants, descendants of Holocaust survivors, and those who came to the United States from Ireland on the run. for famine.
Judge Jackson strongly opposed Judge Thomas, accusing him of imagining her position and misunderstanding the rationale for her support for the policy.
“There are Gulf-sized racial-based disparities regarding the health, wealth and well-being of American citizens,” she wrote. While those inequalities came to light years ago, she added, ignoring that history would be foolish because those inequalities have been “indisputably passed down through the generations to the present day.”
With a brief history of Jim Crow and the Great Migration, Justice Jackson laid out how black families struggled against a justice system that kept them from building wealth – focusing on the strength and determination they displayed.
“Despite these barriers, black people persisted,” she wrote.
She invoked the concept of the pink elephant paradox, the idea that once you try not to think about something, it becomes impossible to stop thinking about it. “The takeaway is that those who demand that no one thinks about race (a classic pink elephant paradox) refuse to see, let alone resolve, the elephant in the room – the race-related inequalities that hinder the realization of our great the full potential of the country.”