Perhaps it’s fitting that a Supreme Court now deciding the largest affirmative action case in 50 years finally has two Black justices sitting on it.
One, Justice Clarence Thomas, has long made clear he thinks the government must be colorblind when it approaches these questions.
“I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” the 74-year-old Republican-appointed judge prodded defenders of affirmative action at one point during oral arguments this week. “It seems to mean everything for everyone.”
For more than three decades, that would have been the court’s sole input from a Black justice.
But thanks to President Biden, the court now has another perspective — newly minted Justice Ketanji Brown Jackson, who made clear she sees affirmative action in markedly different tones than Justice Thomas.
During oral arguments, the 52-year-old justice said the prevailing legal precedent is that the Constitution is not colorblind. She worried that taking race out of the equation would be untrue — and unfair — to the students themselves. Barring schools from asking about race would be a gag on students, she argued, pushing them to hide a most crucial part of their identity.
“I’m worried that that creates an inequity in the system with respect to being able to express your identity and, importantly, have it valued by the university when it is considering the goal of bringing in different people,” she told the Biden administration’s solicitor general.
The two cases being weighed by the justices challenge race-based admissions policies at the University of North Carolina and Harvard University, both of which say they use race as a “plus” factor to help build a more diverse student body. But they insisted nobody gets in solely because of race, and it is one of dozens of factors they weigh.
The key legal question before the court is whether the Equal Protection Clause of the Constitution’s 14th Amendment bars consideration of race altogether, or whether it’s meant to promote minorities.
Kim Forde-Mazrui, a law professor at the University of Virginia, said Justice Thomas and Justice Jackson come down on opposite sides.
“They both care a lot about Black people, but they have very different views about whether affirmative action helps and respects Black people or not,” he said.
Previous school affirmative action cases to reach the court involved White plaintiffs challenging programs that largely helped Blacks, and in some cases Hispanics.
The two cases that reached the court this week included Asian-American plaintiffs, adding a new wrinkle.
There are no Asian-American justices on the court, but there is a Hispanic, Justice Sonia Sotomayor, who sided with Justice Jackson in challenging opponents of affirmative action.
Jonathan Turley, a law professor at George Washington University, said the oral arguments were “full-contact” with the justices appearing “indistinguishable” from the lawyers arguing the cases.
“Justice Thomas was on the farthest extreme on the right in questioning any value from diversity in a class,” he said. “On the other extreme were Justices Sotomayor and Jackson who often used questions to make affirmative statements in favor of affirmative action.”
Justice Sotomayor became the first Hispanic to reach the high court in 2009.
Justice Thomas was the second African American to be seated. He was confirmed in 1991 to fill the seat of Justice Thurgood Marshall, who was the first Black justice, taking his seat in 1967.
Justice Thomas is the only member of the current court who was present in 2003, when the justices issued the current standing precedent for affirmative action in school admissions. In a pair of rulings, the court carved out a limited role, saying race could be a plus factor, but no more.
The most striking part of the ruling was Justice Sandra Day O’Connor’s declaration that affirmative action had a time limit, and she figured racial preferences wouldn’t be needed in 25 years.
That expiration date now looms.
Justice Thomas, in the 2003 cases, said if racial preferences would be illegal in 25 years, they should have been illegal at the time, too.
Justice Thomas’ challenge remained consistent from the last affirmative action case the high court considered in 2003 when he quoted Frederick Douglass in his dissent, arguing for equal — not better or worse — treatment.
“Like Douglass, I believe Blacks can achieve in every avenue of American life without the meddling of university administrators,” Justice Thomas wrote 19 years ago.
He has been consistent on that point in cases since — and legal experts say his position is finally likely to prevail with this current court.
Justice Jackson, in a 2007 Washington Post article, made clear she just couldn’t see where Justice Thomas was coming from.
She recalled sitting across from him at a lunch when she was a law clerk to Justice Stephen G. Breyer more than 20 years ago. She remembered Justice Thomas “spoke the language,” which the reporters said meant she thought he sounded like Black men she knew growing up.
“But I just sat there the whole time thinking: ‘I don’t understand you. You sound like my parents. You sound like the people I grew up with.’ But the lessons he tended to draw from the experiences of the segregated South seemed to be different than those of everybody I know,” she told the newspaper.
Justice Jackson participated in the UNC case but not the Harvard case. She said during her confirmation hearing earlier this year that she planned to recuse herself because of her service on the school’s Board of Overseers.
During the UNC case she repeatedly came back to the dangers of not asking about race. At one point she posed a hypothetical of two applicants: One whose family had been in the state since before the Civil War, and who would be the fifth generation to attend, and the other whose family had likewise been there since before the Civil War — as slaves — and would be the first to attend UNC.
She said the first candidate can get a “plus” for being a legacy, while the second cannot get a “plus” for his race, which in a colorblind approach the university would have to ignore.
“I think you might have an equal protection problem in saying that he can’t get credit for that when someone else can,” she told the lawyer challenging UNC.
She also wondered whether anyone was hurt by the school’s policy.
“I’ve been struggling to understand how race is actually factoring into the admissions process here and whether there’s any actual redressable injury that arises,” she said.