At the Washington Examiner, Tim Carney observes that:

One very popular attack on Clarence Thomas today is that he benefited from affirmative action and yet attacks affirmative action as unjust and illegal discrimination.

Then he asks:

If I could benefit from white privilege in college and call it bad as a columnist, a black man can benefit from affirmative action and explain that it’s unjust. That’s not hypocrisy, that’s acknowledging unfairness in this world, even unfairness that may have helped you.

Indeed so. Per Thomas’s own admission, his concurrence in this year’s affirmative action case is based in large part upon Justice Harlan’s lone dissent in Plessy (a case in which government segregation was deemed legal). Are we to assume that Harlan should not have written what he did back in 1896? Surely, Harlan benefited from white supremacy. He had been a slaveholder himself, and, had segregation continued, he would have been advantaged by that as a white man. Nevertheless, Harlan dissented, because, in his role as a Supreme Court Justice, he believed that the system he was being asked to consider was unconstitutional.

The same is true of Clarence Thomas. It is true, as Carney notes, that Thomas dislikes affirmative action. But, even if he did not, he would still have been obliged to rule it unconstitutional if he believed it to be so. In essence, those who are criticizing Thomas for following his convictions are committing two sins here. The first is to suggest that a person who benefits from discrimination cannot dislike that discrimination. The second is to imply that the role of a Supreme Court Justice is to advance his personal preferences under the color of the law. Neither is true.