Perhaps it’s fitting that the Supreme Court is now deciding the biggest affirmative action case in 50 years with two black justices finally sitting on it.

One, Justice Clarence Thomas, has long made it clear that he thinks the government should be impartial when it comes to these questions.

“I’ve heard the word ‘diversity’ enough times, and I don’t know what it means,” the 74-year-old Republican-nominated judge prodded affirmative action defenders at one point during oral arguments. Saturday “Seems like it’s everything to everyone.”

For more than three decades, this would be the court’s only input from a black justice.

But thanks to President Biden, the court now has another perspective — newly minted Justice Keitan G. Brown Jackson, who made it clear that she sees affirmative action in a markedly different tone than Justice Thomas.

During oral arguments, the 52-year-old justice said existing legal precedent is that the Constitution is not colorblind. She worried that taking race out of the equation would be wrong — and unfair — to the students themselves. Preventing schools from asking about race would be rude to students, he argued, forcing them to hide the most important part of their identity.

“I’m concerned that this creates inequities in the system in terms of being able to express your identity, and importantly, when the university considers the goal of bringing diverse people into the university,” he told the Biden administration. If so, has it been valued.” Solicitor General

The two cases weighed in on the justices challenging race-based admissions policies at the University of North Carolina and Harvard University, which both say use race as a “plus” factor to help create a more diverse student body. are But he insisted that no one comes because of race alone, and that it is one of dozens of factors that weigh.

The key legal question before the Court is whether the equal protection clause of the 14th Amendment to the Constitution prohibits race altogether, or is intended to promote minorities.

Justice Thomas and Justice Jackson are polar opposites, said University of Virginia law professor Kim Ford-Masroi.

“They both care deeply about black people, but they have very different views on whether affirmative action helps and respects black people,” he said.

Previous school affirmative action cases to reach the courts involved white plaintiffs challenging programs that largely favored blacks and, in some cases, Hispanics.

Two cases that reached court this week involved Asian-American plaintiffs, adding a new wrinkle.

There are no Asian-American judges on the court, but there is one Hispanic, Justice Sonia Sotomayor, who has sided with Justice Jackson in challenging affirmative action opponents.

George Washington University law professor Jonathan Turley said the oral arguments were “full of communication” with judges appearing “indistinguishable” from lawyers arguing the cases.

“Justice Thomas was the furthest to the right in questioning any value of diversity in a class,” he said. “On the other side were Justices Sotomayor and Jackson who often used the questions to make positive statements in favor of affirmative action.”
Justice Sotomayor became the first Hispanic to reach the high court in 2009.

Justice Thomas was the second African American to be seated. He was confirmed in 1991 to fill the seat of Justice Thurgood Marshall, the first black justice, taking his seat in 1967.

Justice Thomas is the only member of the current court who was present in 2003, when the justices issued the current standing precedent for affirmative action in school admissions. In a pair of decisions, the Court determined a limited role, saying that race could be a plus factor, but no more.

The most notable part of the decision was Justice Sandra Day O’Connor’s declaration that affirmative action had a time limit, and that she thought racial preferences would no longer be needed in 25 years.

Its expiry date is now over.

Justice Thomas said in the 2003 cases that if racial preferences would be illegal 25 years from now, they should still be illegal now.

Justice Thomas’ challenge was consistent with the last affirmative action case considered by the high court in 2003 when he cited Frederick Douglass in his dissent, arguing for equal — better or worse — treatment.

Justice Thomas wrote 19 years ago that “Like Douglass, I believe that blacks can achieve in every walk of American life without the interference of university administrators.”

He has stuck to that point in cases since — and legal experts say his position is likely to eventually prevail with this current court.
Justice Jackson made clear in a 2007 Washington Post article that she simply could not see where Justice Thomas was coming from.

She remembered sitting next to him at lunch when she was Justice Stephen G. Breyer’s law clerk more than 20 years ago. He recalled that Justice Thomas “speaked,” which reporters said meant he thought he looked like the black men he grew up with.

But all the time I sat thinking: ‘I don’t understand you. You sound like my parents. You look like the people I grew up with.’ But the lessons he tried to draw from the experiences of the segregated South seemed different from anyone I knew,” he told the newspaper.

Justice Jackson participated in the UNC case but not in the Harvard case. He said during his confirmation hearing earlier this year that he planned to recuse himself because of his service on the school’s board of trustees.

During the UNC case she repeatedly returned to the dangers of not asking about race. At one point he hypothesized two applicants: one whose family had been in the state before the Civil War, and who would be the fifth generation to attend, and another whose family had been in the state since before the Civil War. was there. as slaves — and would be the first to attend UNC.

He said that the first candidate could get a “plus” for having heritage, while the second could not get a “plus” for his race, which the university would have to colorfully ignore.

“I think you can have an equal protection issue in saying he can’t get credit for it when someone else can,” he told the attorney challenging UNC.

He also wondered if anyone had been hurt by the school’s policy.

“I’m struggling to understand how race is actually affecting the admissions process here and whether there’s really an injury that can be remedied,” she said.

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