As RedState reported earlier, the United States Supreme Court ruled in a 6-3 vote Thursday that the race-based college admissions processes used by Harvard and the University of North Carolina (UNC) violate the 14th Amendment’s equal protection clause, effectively striking down the use of affirmative action programs.
In Justice Ketanji Brown Jackson’s dissenting opinion in the UNC case, Jackson, who was nominated by President Joe Biden to the Supreme Court in part based on a campaign promise to nominate a black woman, accused the court’s conservative majority of “let-them-eat-cake obliviousness,” proclaiming that the Justices “detached” themselves from “this country’s actual past and present experiences,” while lecturing the “ostrich-like” members about so-called “lived experiences”:
Wow. Justice Ketanji Brown Jackson dissent. pic.twitter.com/ica3ED6LZq— Neal Katyal (@neal_katyal) June 29, 2023
In his concurrence with the majority, Justice Clarence Thomas responded accordingly to Jackson’s dissent. Here are some noteworthy excerpts:
Accordingly, JUSTICE JACKSON’s race-infused world view falls flat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. 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 JACKSON then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the in-nocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. Post, at 26; see also post, at 5–7 (GORSUCH, J., concurring) (explaining the arbitrariness of these classifications). Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. Post, at 26 (opinion of JACKSON, J.). Social movements that invoke these sorts of rallying cries, historically, have ended disastrously.
Unsurprisingly, this tried-and-failed system defies both law and reason. Start with the obvious: If social reorganization in the name of equality may be justified by the mere fact of statistical disparities among racial groups, then that reorganization must continue until these disparities are fully eliminated, regardless of the reasons for the disparities and the cost of their elimination. If blacks fail a test at higher rates than their white counterparts (regardless of whether the reason for the disparity has anything at all to do with race), the only solution will be race-focused measures. If those measures were to result in blacks failing at yet higher rates, the only solution would be to double down. In fact, there would seem to be no logical limit to what the government may do to level the racial playing field—outright wealth transfers, quota systems, and racial preferences would all seem permissible. In such a system, it would not matter how many innocents suffer race-based injuries; all that would matter is reaching the race-based goal.
Worse, the classifications that JUSTICE JACKSON draws are themselves race-based stereotypes. She focuses on two hypothetical applicants, John and James, competing for admission to UNC. John is a white, seventh-generation legacy at the school, while James is black and would be the first in his family to attend UNC. Post, at 3. JUSTICE JACKSON argues that race-conscious admission programs are necessary to adequately compare the two applicants.
As an initial matter, it is not clear why James’s race is the only factor that could encourage UNC to admit him; his status as a first-generation college applicant seems to contextualize his application. But, setting that aside, 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?
The full opinion can be read here. Thomas’ full response to Jackson starts on page 97.