Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, by Eric J. Segall
posted by Wake Forest Law Review
The editors of Common Law, the online publication of the Wake Forest Law Review, are proud to announce their most recent publication: Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, by Eric J. Segall.
In Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, Eric J. Segall argues that, even though Justice Thomas publicly espouses an originalist approach to constitutional interpretation, his decisions regarding affirmative action “reflect an obvious disregard for text and history.” In Segall’s opinion, the text of the Fourteenth Amendment can be plausibly interpreted as permitting racial classifications that benefit minorities. However, Thomas has so far refused to explore the ambiguity of the word “equal,” choosing instead to take an overly-formalistic view of the equal protection clause. Since there is an ambiguity, Thomas’ originalism would seem to require him to adhere to the original intent of the drafters of the Fourteenth Amendment.
Yet, Thomas has so refused to even acknowledge the abundant historical evidence that “the drafters and ratifiers of the Reconstruction Amendments would have believed racial preferences designed to assist the newly freed slaves were in fact fully consistent with those Amendments.” Because of this, Segall concludes that Thomas’ view on affirmative action cannot be explained as a logical application of his originalism; rather, he speculates that it is the result of bad faith, confusion, or both.
Segall’s full essay is available here.
Preferred citation: Eric J. Segall, Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, 3 Wake Forest L. Rev. Online 11 (2013).
March 22, 2013 at 4:00 pm
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Responses (12)
Brett Bellmore - March 22, 2013 at 6:42 pm
Justice Thomas, threat or menace? J. Johanna Jameson lives again!
Just guessing here, but Thomas may have simply noticed that there aren’t any newly freed slaves around anymore, rendering the authors of the 14th amendment’s opinions of it’s application to newly freed slaves somewhat moot.
Joe - March 23, 2013 at 1:39 pm
Not sure why “threat or menace” is brought up here.
The concern here is that Scalia and Thomas appeal to originalism, but in this area, they argue it is clear that laws that put in place affirmative action programs are not just bad policy, but unconstitutional even though the text and history of the amendment does not compel this result. They appeal to broad principles that might be reasonable enough, but there is much more ambiguity than their self-assured path offers.
The reasonableness of race based programs in 1870 might have been different than those today but the essay suggests Thomas has not adequately examined text and history to explain the difference. Such a full discussion might suggest as well that the matter is not “moot” since the principles applied would justify use of race [as Justice Kennedy accepts, making it the rule of the Court] today in certain ways too, depending on how they went about it.
Shag from Brookline - March 23, 2013 at 10:21 pm
Speaking of “threat or menace,” perhaps the Second Amendment is “moot” since its “militia” became “moot.”
But Thomas need only reread his autobiography to understand that the 14th Amendment is not “moot.” Better yet, Thomas might read bios of Justice Thurgood Marshall to better understand that the 14th Amendment did not become “moot” once there were no “newly freed slaves around anymore” as Brown v. Bd. of Educ. led to providing a foundation for Thomas’ means to getting to where he is now.
Those changing demographics still gnaw at Brett who is pictured well in Andrew Kohut’s WaPo OpEd today: “The numbers prove it: The GOP is estranged from America.
Brett Bellmore - March 24, 2013 at 9:51 am
I don’t believe amendments themselves actually become “moot”, save by repeal. Expected applications? Sure. For instance, the expected application of the 14th amendment to recently freed slaves is rendered moot by the fact there aren’t any around anymore. Leaving only it’s application to people who are not, and never have been, slaves, in a nation where slavery has been illegal for over 130 years.
On the WaPo oped, other polls have demonstrated that GOP policies are popular, right up until the moment you tell the people being polls that the policies are associated with the GOP. So there’s no question the GOP has a very serious PR problem with a considerable segment of the population, even as it’s actual policies remain popular.
But what is one to expect, when most ‘journalists’ are Democrats? Something like that is going to have it’s effects.
Shag from Brookline - March 24, 2013 at 3:41 pm
Brett’s:
“On the WaPo oped, other polls have demonstrated that GOP policies are popular, ….”
neglects the admissions by the GOP’s self-performed autopsy of its failures. Perhaps when Brett looks in the mirror he sees himself with a full head of hair. The glass isn’t half-empty, it’s just empty.
As to Brett’s “expected applications,” he is apparently one of the few originalists who follow that variation of originalism. Of course, “expected applications” rely upon “history,” which Brett disdains when it doesn’t serve his purpose, such as the “history” of Jim Crow and discrimination against African Americans following Reconstruction and continuing through Plessy v. Ferguson, until Brown v. Bd. of Educ. in 1954, followed by even more Jim Crow reaction in the former slave states as Civil rights laws were passed in the 1960s, followed by Nixon’s 1968 GOP Southern Strategy remnants of which are still about.
Perhaps in Brett’s mind “expected applications” going back to 1789 and 1791 meant the US to be and remain a White nation, what with the various provisions in the constitution respecting preservation of slavery and overcoming the Natives with force of arms. Oh for those good old days, rather than the changing demographics upsetting Brett’s desired “expected applications.”
But Brett should take solace that as the demographic changes take place, the 14th Amendment may serve to protect Whites from racial discrimination at the hands of the new majority..
Brett Bellmore - March 25, 2013 at 7:14 am
“But Brett should take solace that as the demographic changes take place, the 14th Amendment may serve to protect Whites from racial discrimination at the hands of the new majority..”
Whites are already the minority in large parts of the country, and the dominant view at the DOJ is, none the less, that whites should never benefit from 14th amendment protections. Not where they’re the majority, and not where they’re the minority.
I don’t see any particular reason to expect that to change just because whites become a minority in more places. Rather, the voting power of whites to object to this will only diminish, and the rationalization become politically easier to sustain.
I don’t see this ending well at all.
Shag from Brookline - March 25, 2013 at 8:07 am
Here’s Brett’s personal zero-sum game assessment:
“I don’t see this ending well at all.”
Brett states, apparently as a fact:
“Whites are already the minority in large parts of the country, ….”
without identifying those large parts. Perhaps Brett has state-level-data on this or has in mind some municipalities or counties. The make-up of the House and Senate does not seem to back up Brett’s claim. I read a recent article that indicates 2050 as the shift in majority, some 37 years from now.
Joe - March 25, 2013 at 9:20 am
“whites should never benefit from 14th amendment protections”
Wrong.
Brett Bellmore - March 25, 2013 at 10:13 am
I agree it’s wrong, but according to the IG report on the Civil Rights division, it’s none a common view in the DOJ.
Joe - March 25, 2013 at 11:19 am
Since Brett wants to be coy, I’ll be more explicit.
It is wrong that “whites should never benefit from 14th amendment protections” is the “dominant view at the DOJ.”
The report doesn’t say otherwise even if various individuals believe resources should not be used in certain ways and/or that certain suits involving whites are meritorious.
For instance, rejecting the preclearance of voter id laws doesn’t have a “it’s okay if the laws are applied to whites” proviso. Guarding against obtrusive state requirements to prove citizenship in voting do not have a “if the person is Finnish, the law is okay.”
And, of course, the DOJ doesn’t think whites lack the power under the 14A to have criminal due process right etc. In fact, the Administration supports white Prop 8 opponents in CA who are arguing a 14A equal protection claim. Words have meanings. Yours were wrong.
Brett Bellmore - March 27, 2013 at 7:14 am
Ok, fair enough, I said “14th amendment” when I should have said, “Voting Rights Act”. The belief that whites should not benefit from neutral enforcement of the law is, at this point, selective.
Joe - March 27, 2013 at 11:36 am
As I noted, the DOJ does not think “whites” lack voting rights pursuant to federal law. They “benefit” from them, including respecting addressing burdensome id requirements. Disagreements in certain cases does not mean they lack “any” 14A or voting rights in the eyes of the current personnel.
I appreciate though that your stereotype now is less wrong.
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