Justice Thomas, Supreme Judicial Hypocrisy, and Race

Justice Clarence Thomas has been ranting and raving about our "color-blind" Constitution since he became a federal judge. Whether the case involved governmental racial classifications in employment or education, Thomas has consistently maintained that the most aggressive level of judicial review, strict scrutiny, applies to all intentional uses of race by the government, and he has never voted to uphold an affirmative action plan. Thomas has explained and justified this approach many times. Here is one example (citations omitted):

The Fourteenth Amendment provides that no State shall “deny to any person . . . the equal protection of the laws.” The Equal Protection Clause guarantees every person the right to be treated equally by the State, without regard to race. At the heart of this [guarantee] lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups. It is for this reason that we must subject all racial classifications to the strictest of scrutiny.

Under strict scrutiny, all racial classifications are categorically prohibited unless they are necessary to further a compelling governmental interest and narrowly tailored to that end. This most exacting standard has proven automatically fatal in almost every case. And rightly so. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that [racial] classifications ultimately have a destructive impact on the individual and our society. The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.

Last week, in a case where a lower three-judge court found that South Carolina had used race illegally when redistricting, Justice Thomas abandoned his belief in a judicially enforceable principle of color-blindness. As Mike discussed yesterday, the majority opinion of Justice Alito altered the governing law to make it much more difficult, but not impossible, for plaintiffs to bring racial redistricting claims.  Justice Thomas's solo concurring opinion went even further. He argued that such claims can never be brought in federal court as a jurisdictional matter because they, like partisan redistricting claims, present political questions that the federal courts may not resolve. 

Nowhere in his opinion does Thomas reference his many opinions and public speeches about color-blindness. Instead, he wrote the following series of words and strung them together presumably thinking they made sense:

As we reiterated last Term, [o]ur Constitution is color-blind. A colorblind Constitution does not require that racial considerations “predominate” before subjecting them to scrutiny. Nor does it tolerate groupwide judgments about the preferences and beliefs of racial minorities. It behooves us to abandon our misguided efforts and leave districting to politicians.

Justice Thomas never persuasively explains why federal judges may, in fact must, overturn efforts by public officials to increase racial diversity in education and employment by using racial classifications but legislators may use race to redistrict minorities (or majorities) out of existence by using racial criteria without any role for the federal judiciary. Thomas says that it is too difficult for judges to separate racial motivation from partisan motivation in redistricting. But this is a change for Thomas, who previously joined several opinions, like this one, overturning legislative maps that helped create majority-minority districts. 

In one such 2016 case, Thomas concurred specially and said the following:

As to District 1, I think North Carolina’s concession that it created the district as a majority-black district is by itself sufficient to trigger strict scrutiny. I also think that North Carolina cannot satisfy strict scrutiny based on its efforts to comply with §2 of the Voting Rights Act.... As to District 12, I agree with the Court that the District Court did not clearly err when it determined that race was North Carolina’s predominant motive in drawing the district. 

Thomas never explains why he once thought that racial considerations could be identified and separated by judges from partisan ones nor why he once thought such cases justiciable but no longer does. Given his three-decade war on all governmental racial classifications, the least he could have done is explain why he is making a huge exception to his self-proclaimed rule of color-blindness. 

One could easily argue that federal judges have an even higher obligation to make sure the political process is devoid of allegedly illegal racial considerations than it does with respect to education and workplace cases. Yet, for Thomas, legislators can use race any way they want to with no judicial review at all. It is a bizarre and brazen development for the King of Color-Blindness.

But it gets worse. Thomas says the following about Brown v. Board of Education:

In the follow-on case to Brown, the Court considered the manner in which relief [was] to be accorded for vindication of the fundamental principle that racial discrimination in public education is unconstitutional. In doing so, the Court took a boundless view of equitable remedies, describing equity as being “characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.” That understanding may have justified temporary measures to overcome the widespread resistance to the dictates of the Constitution prevalent at that time, but, as a general matter, [s]uch extravagant uses of judicial power are at odds with the history and tradition of the equity power and the Framers’ design.

No one with any knowledge of post-Brown 1950's and early 1960's American history could write such an obviously ignorant paragraph. The reality is that, according to Gerald Rosenberg's well-regarded book, The Hollow Hope, in 1963 in 12 Southern states (nine years after Brown), public elementary and secondary schools were 98% segregated. In other words, after Brown II's dictate that desegregation occur with "all deliberate speed," the southern states, in fact, used almost no speed and many did not change their laws on the subject until Congress made them do so as a condition for receiving federal money (lots of money) in 1964. 

Then, not too long later, the Court created the de jure/de facto distinction in segregation cases, whereby states did not have to do anything about segregated schools unless the district's intentional actions (as opposed to general societal discrimination) were the main cause of the segregation. 

Justice Thomas's description of the federal courts' post Brown remedial powers as "extravagant" has no basis in real history, like most of Thomas's opinions. But that is a bit of nit-picking in the sense that the larger story here is Thomas's complete abandonment of a color-blindness rule judges may enforce with respect to districting. 

For three decades, Thomas has urged judicially enforceable rules of color-blindness with passion, dogmatism, and, well-documented historical fabrications, as I wrote about here. But all of a sudden, after joining numerous cases in which the Court reviewed whether legislatures had redistricted in ways that made race the predominant consideration, Thomas says that courts have no business asking this question at all. Why would he do that? 

We are left to wonder, but the effects of his opinion, making racial redistricting claims non-justiciable, if accepted by the majority, could very well lead to, as one commentator noted, the following:

By gutting the 14th and 15th Amendments through an ultra-narrow interpretation, Thomas is telling us that he prefers a nation where state legislatures can divvy up citizens on the basis of race to create maps that openly discriminate against racial minorities. It is a vision that would horrify the abolitionists who sought to end such state-sponsored racism once and for all, as well as the justices who sought to vindicate their aims in Brown.

Given his long history of supporting judicially enforceable color-blindness rules, as well as his joining in numerous cases the search for illegal racial considerations in redistricting cases, one would have thought that Thomas would explain his change-of-heart with more detail than simply that judges shouldn't draw maps and redistricting is hard. Instead of that explanation, we get an attack based on the claim that federal courts went too far in trying to implement Brown, a scary position completely devoid of reasoned analysis of law and fact. 

We are left to speculate about Thomas's reasons for his doctrinal shift. Given his general hostility to all legislative efforts to help people of color, as I documented here, my best guess is that he wants to give state legislatures free rein to redistrict Blacks out of meaningful voting opportunities because that would greatly help the Republican Party. So, it turns out that judicially enforced color-blindness is only the rule sometimes, and that sometimes is full of highly partisan, not rule-of-law, concerns. In Justice Thomas's case, that is simply supreme judicial hypocrisy, nothing less and nothing more.