A journalist who was at the Supreme Court on Thursday described the intense atmosphere in the wake of a conservative majority’s decision to strike down racial preferences in higher education admissions. As Justice Clarence Thomas read his concurring opinion aloud from the bench, the reporter captured a moment fit for the history books.
“During Thomas’ lengthy concurrence, Justice Ketanji Brown Jackson, the first Black woman to serve on the court, did not look toward, or make eye contact once with Thomas, the second Black man to serve on the court,” he wrote. “She sat in her seat at the end of the bench, looking straight ahead, taking occasional sips of her coffee. She appeared to be visibly angry.”
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That indefensible rage against prohibiting racial discrimination is evident throughout Jackson’s dissent. It begins with a lengthy recounting of injustices and disparities between whites and blacks throughout history, declaring that America “falls short of” the promise of equality if it cannot complete the impossible task of ending countless statistical differences in outcomes among ethnic groups.
Jackson asks readers to “imagine” two hypothetical college applicants, one white and the other black. Affirmative action, she says, is about “acknowledging (not ignoring) the seven generations’ worth of historical privileges and disadvantages that each of these applicants was born with” and thus penalizing the white person for things he never did. “History speaks,” she says. “In some form, it can be heard forever.” In a paragraph that brought widespread mockery, she borrowed from Marxist terminology to consider the “lived experiences” of minorities.
Justice Thomas does not have to imagine racism because he has experienced it. Before Jackson was ever born, he was growing up in poverty in the segregated South, attending schools for black children that lacked the same resources as white schools. But he does not weaponize his “lived experience” because he understands the evils of racial discrimination more deeply than anyone on the court.
More importantly, he understands why so-called affirmative action is unconstitutional. His opinion wrecks Jackson’s claim that the 14th Amendment is “race-conscious” by quoting numerous officials and laws near the time of its passage that show a “colorblind” intent behind the push for equality. Jackson’s racial commentary is “constitutionally irrelevant,” he points out. In total, the two opinions put Jackson’s appeals to emotion, red herrings, pretentious tone, trendy slogans, and demands for racial vengeance against Thomas’s cool reason, relevant legal analysis, and respect for equal justice under the law, the very principle etched on the front of the court’s building.
The two jurists are rival counterparts on the issue of affirmative action. Thomas came to resent special treatment for blacks after struggling to advance in the legal profession. He suspected that employers took him less seriously because his skin color was a sign that he may not have achieved his goals through merit and, thus, was less qualified. President Joe Biden, meanwhile, appointed Jackson for the explicit purpose of putting a black woman on the nation’s highest court. She is the epitome of a diversity hire and embraces entitlement. Thomas detests liberal condescension, while Jackson welcomes it.
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“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,” Thomas observes. “Her desire to do so is unfathomable to me.”
Thomas holds this attitude despite having every right to claim victimhood against those who relentlessly smear him. From the baseless sexual misconduct allegations that threatened his seat on the court to frequent accusations of betraying his race, this treatment contrasts sharply with the media’s shameless fawning over Jackson as “a transformative justice” who “makes herself heard.” But all the unearned praise Jackson receives cannot close the vast intellectual and moral gap between their two ways of thinking.
Hudson Crozier is a summer 2023 Washington Examiner fellow.