Justice Thomas’s Individualist Concurrence

Anastasia P. Boden

Today was a watershed moment in Fourteenth Amendment jurisprudence. For all intents and purposes: racial preferences in higher education are no longer allowed. Over the course of 237 pages, the nine Supreme Court justices traded barbs over affirmative action, with Chief Justice John Roberts writing the majority opinion. But Justice Thomas’s concurrence was the star.

As expected, the majority opinion in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina was written by Chief Justice Roberts, who has long authored vigorous decisions defending race‐​neutrality in government policymaking. He coined the (depending on who you ask) much lauded or much mocked phrase, “the best way to get rid of discrimination on the basis of race is to get rid of discrimination on the basis of race.” He included a similar statement in this case, remarking that “Eliminating racial discrimination means eliminating all of it.”

In typical Justice Roberts fashion, the Chief never explicitly overruled Regents of the University of California v. Bakke or Grutter v. Bollinger, the two primary Supreme Court cases permitting race‐​based college admissions for the purpose of “obtaining the benefits that flow from a diverse student body.” Instead, he concluded that the challenged admissions programs failed to satisfy those opinion’s safeguards. For instance, they amounted to quotas, relied on stereotyping, penalized some students based on race, and had no ending point in sight. Though Chief Justice Roberts never explicitly said so, the implication is that the diversity rationale is no longer permissible, since preferences will always act as a negative for some students (after all, admissions is a zero‐​sum game) and the diversity rationale is inherently stereotypical (because it assumes that students bring something to the table by virtue of their race alone).

Justice Thomas’s individualist concurrence, by contrast, was a strident show‐​stopper that beautifully defended the principles of equality before the law and individualism. His opinion began with a lengthy history of the Fourteenth Amendment and concluded with a whopper of a line accusing Justice Jackson of engaging in racial determinism.

The concurrence covers a lot of ground beginning with an Originalist analysis of the original public meaning of the Equal Protection Clause. Though the dissenting justices argue that the Clause does not require race‐​neutrality, Justice Thomas persuasively demonstrates that the Clause was passed to forbid “all legal distinctions based on race or color,” including purportedly benign ones.

He also wrote at length about the inherent arbitrariness of racial classifications (covered in David Bernstein’s new book, Classified), mismatch theory (which posits that affirmative action perpetuates stereotypes by placing in classes where they are “less likely to succeed academically relative to their peers”), and the pernicious effect race‐​based admissions has had on Asian students, who are placed at a significant disadvantage by Harvard’s and UNC’s preference system. But he reserves the most powerful language for rebutting Justice Jackson’s assertion that racial preferences can be justified as a remedy for societal discrimination.

Justice Thomas begins his rebuttal by noting that there’s a difference between genuine remedial measures for racial discrimination (which are permissible under the Equal Protection Clause) and racial balancing for its own sake. To prevent the former from becoming the latter, proponents of government sponsored racial classifications must demonstrate a traceable link to government perpetuated discrimination. Justice Jackson has no such evidence and instead relies mainly on statistical disparities. Or, as Justice Thomas puts it:

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. 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. I strongly disagree.

As Justice Thomas notes, not all disparities can be ascribed to race, let alone discrimination. Disparities can arise from socio‐​economic status, geography, and myriad other factors. And while Justice Jackson focuses on group outcomes, Justice Thomas focuses on individuals. Even where disparities exist, they don’t exist for everyone in the group. But “[e]ven if some whites have a lower household net worth than some blacks,” Justice Thomas says, “what matters to Justice Jackson is that the average white household has more wealth than the average black household.” He continues:

This lore is not and has never been true. 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; not all people are racist; and not all differences between individuals are ascribable to race. Put simply, “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh‐​and‐​blood human beings.” T. Sowell, Wealth, Poverty and Politics 333 (2016). 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. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.

To the extent individual Black Americans have fewer means, or poorer health, or any of the disparities Justice Jackson describes, universities can take those factors into account. What it can’t do, says Justice Thomas, “is use the applicant’s skin color as a heuristic, assuming that because the applicant checks the box for ‘black’ he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person.” In other words, individuals are more than the skin color they are born into.

He uses as an example Justice Jackson’s hypothetical regarding John and James, two applicants competing for admission to UNC. John is a white, seventh‐​generation legacy at the school and James is black applicant would be the first member of his family to go to UNC. Putting aside that the university could take into account James’s first‐​generation status rather than his race, Justice Thomas asks, “why is it that John should be judged based on the actions of his great great‐​great‐​grandparents? And what would Justice Jackson say to John when deeming him not as worthy of admission: Some statistically significant number of white people had advantages in college admissions seven generations ago, and you have inherited their incurable sin?” As Justice Scalia wrote elsewhere, “under our Constitution, there can be no debtor or creditor race.” Instead, “in the eyes of the government, we are just one race here. It is American.”

Contrary to the dissenters’ view of equality, which seeks equality based on group outcome, Justice Thomas emphasizes individual traits over group membership, noting that “All racial groups are heterogeneous, and blacks are no exception—encompassing northerners and southerners, rich and poor, and recent immigrants and descendants of slaves. Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping.”

Contrary to being mere products of their race, “Individuals are the sum of their unique experiences, challenges, and accomplishments.” Whereas the dissenters considers individuals passive actors in an inherently and inexorably racist scheme, Justice Thomas believes individuals have agency. “What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.”

Justice Thomas concludes that “the great failure of this country was slavery and its progeny. And, the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments, as Justice Harlan predicted in Plessy.” He’s right. Some of the biggest injustices have occurred because of the Supreme Court’s narrowing of civil rights under the Fourteenth Amendment (looking at you, Slaughter‐​house and Cruikshank) and its upending of equality before the law. If we want all people to achieve the American Dream, the Court must protect individuals’ liberty and prevent government created barriers from getting in the way.

It’s true, of course, that society has never been colorblind, but as Justice Thomas says, the government must be—lest we start a vicious and self‐​perpetuating cycle of race‐​based balancing. So will it be, given today’s opinion?

There’s a very real possibility schools will just drive their discrimination further underground. It took a great deal of discovery to get to the bottom of Harvard’s and UNC’s systems, which though multi‐​factored on their face amounted to quotas in practice. There will likely be litigation over covert racial balancing or the use of “neutral” proxies in the future. But for now, the Court has affirmed its commitment to treating people without regard to race or other immutable characteristics, which is a win for our individualist Constitution.