by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Justice [Clarence] Thomas’ concurrence in Student for Fair Admissions is a classic study in legal analysis. He walks step by step through the colorblind nature of the Constitution. He notes that the Fourteenth Amendment “ensures racial equality with no textual reference to race whatsoever.” (Emphasis in the original.) He walks through the broad and long-standing legal identity between citizenship and equality. The arguments both for and against various wordings are fully exposed. Then he dissects the “antisubordination” view “that the Amendment forbids only laws that hurt, but not help, blacks.” This is radically opposite to the colorblind origins and intentions of the Reconstruction Amendments. This view is a policy preference but cannot be supported as law.
Justice Thomas then addresses the arguments of the universities and his leftist opponents on the Court. Remedies at law require compelling reasons to discriminate based on race. But despite many years of developing the argument that “diversity” has educational benefits, Harvard and UNC are still unable to show this. …
… By way of contrast, Justice Jackson’s 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.” Somehow, we are trapped in a fundamentally racist society. She effectively denies Justice Roberts’ comment in 2006 that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Her solution appears to be “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.”
In her (Is she female? She can’t define the term…) dissent, Justice Jackson demonstrates most vividly the contrast between legal analysis and activist rhetoric. Jackson’s dissent is based not on law but on policy. And this runs right into the Scylla and Charybdis of the Constitution.