Justice Clarence Thomas issued a scathing rebuke of Justice Ketanji Brown Jackson's dissent in the Supreme Court's decision in Students for Fair Admissions v. President and Fellows of Harvard College, in which a 6-3 majority ruled affirmative action policies in college admissions are unconstitutional.
In his 58-page concurrence, Thomas said Jackson's connection between racial groups and "levels of health, wealth, and well-being" was locking "blacks into a seemingly perpetual inferior caste."
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“So Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste," Thomas wrote. "Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood."
He also slammed Jackson's "race-infused world view," which he says "falls flat at each step.
"Individuals are the sum of their unique experiences, challenges, and accomplishments," he wrote. "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."
For much of his lengthy concurrence, Thomas explained why he agreed with the majority opinion authored by Chief Justice John Roberts. Thomas emphasized how the 14th Amendment to the Constitution was a "race-neutral text" and invoked the lone dissent in the infamous Supreme Court case Plessy v. Ferguson, in which the majority opinion ruled racial segregation was legal as long as facilities and accommodations for each race were equal.
Thomas recalled how Justice John Marshall Harlan's dissent in Plessy argued that the "Constitution was colorblind and categorically rejected laws designed to protect a 'dominant race — a superior class of citizens,' while imposing a 'badge of servitude' on others."
In addressing affirmative action policies, Thomas asserted they hinge on "the same naked racism upon which segregation itself was built.”
Thomas also argued that remedies for past discrimination must be “concrete and traceable” to past discrimination, and must not have a “discrete and continuing discriminatory effect” that requires a new fix.
“Without such guardrails, the Fourteenth Amendment would become self-defeating, promising a Nation based on the equality ideal but yielding a quota- and caste-ridden society steeped in race-based discrimination,” he wrote.
In addressing arguments from Harvard University and the University of North Carolina — which were defending their affirmative action policies in the case — Thomas stated that "it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination.”
He also said that UNC and Harvard could not be trusted to determine those policies considering past discriminatory practices, including Havard’s anti-Jewish admission policies in the 1920s and UNC's segregationist policies prior to the 1950s, though Thomas said those details are irrelevant because it is also the job of the court to "uphold the Constitution.
“The Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence. Given the strictures set out by the Court, I highly doubt any will be able to do so,” he wrote.
Thomas concluded his concurrence by stating that he is "painfully aware" of "social and economic ravages" that have happened to blacks and those who face discrimination, but that he holds onto "enduring hope that this country will live up to its principles.
“While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law,” he wrote.
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The majority opinion was written by Roberts and joined by Justices Thomas, Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh, and Samuel Alito. Thomas, Gorsuch, and Kavanaugh all filed concurring opinions.
The ruling held that "Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment."