Supreme Court Justice Clarence Thomas was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 1991. He is the second African American to serve on the Court. He is also anti-affirmative action.
But it seems after SCOTUS struck down affirmative action in college admission in its decision for the case “Students for Fair Admissions v. Harvard,” Thomas may have unintentionally ushered in a new type of affirmative action.
In Justice Thomas’ concurring opinion, he rejected the concept that race-conscious policies were acceptable during the time of the 14th Amendment. He cited the example of the Freedmen’s Bureau, which focused on providing services to newly freed Black slaves. According to Thomas, the bureau was formally race-neutral, focusing on freedmen and refugees rather than Black individuals as a whole.
“While this logic may be flawed, if taken at face value, it could pave the way for affirmative action programs that focus on the descendants of former slaves,” Jonathan Zasloff, a professor of law at the UCLA School of Law, wrote in Slate.
Zasloff breaks down Thomas’ argument: If there is a program solely for former slaves, it is constitutional because it is “formally race-neutral.” Using this argument, a program for the descendants of former slaves would also be constitutional, and thus, affirmative action’s purpose would not be to increase diversity but instead help compensate for historical injustice.
Thomas, who lived through segregation but went to mostly white schools, has long been critical of racial preferences. He has said he felt affirmative action stigmatize rather than help the intended beneficiaries. Thomas, who went to Yale law school, has used his personal experiences to say that other students assume because you’re Black, you were only admitted to an Ivy League because of race and that you are unqualified.
Due to affirmative action being in place at the time when Thomas applied to Yale Law School, his race was taken into consideration.
“I asked Yale to take that fact into account when I applied, not thinking that there might be anything wrong with doing so,” Thomas wrote in his 2007 “My Grandfather’s Son: A Memoir.”
“When you talk about affirmative action programs you talk about the benefits and the costs.” says Roger Clegg of the Center for Equal Opportunity, a group critical of racial preferences, told ABC News. “Thomas can talk about costs with a credibility you can’t have if you are not a supposed beneficiary of affirmative action.”
Supreme Court Justice Clarence Thomas delivers a keynote speech during a dedication of Georgia new Nathan Deal Judicial Center in Atlanta, Feb. 11, 2020. (AP Photo/John Amis, File)