Dramatic fault lines between Justices Clarence Thomas and Ketanji Brown Jackson's affirmative action ruling -- and their 'lived experiences' too
The diverse opinions issued in the Supreme Court's ruling yesterday striking down affirmative action in college admissions pretty well confirms Justice Clarence Thomas's assertion that black people are individuals, and as individuals, they have different experiences. All one has to do to see that is look at the dissenting opinion of his junior colleague, Justice Ketanji Brown Jackson, who is also black, and compare it to his own.
In STUDENTS FOR FAIR ADMISSIONS, INC., Plaintiff, v. UNIVERSITY OF NORTH CAROLINA the Court ruled 6-3 against affirmative action in college admissions, based on a series of lawsuits brought by largely Asian-American students from Students for Fair Admissions, who charged they were being systemically discriminated against based on the color of their skin, owing to the schools' admissions rulings that there were "too many" of them even though their applications demonstrated outstanding merit. (There also was a similar case against Harvard by the same plaintiffs that the Court ruled the same way on, which Jackson recused herself from).
Thomas argued forcefully in what has been described as an "epic" concurring opinion by the lawyers at Legal Insurrection, that black people cannot be pigeonholed, cookie-cuttered, or summed up with little check boxes substituting for merit, and he went after Jackson for saying so:
Yet, JUSTICE JACKSON would replace the second Founders’ vision with an organizing principle based on race. In fact, on her view, almost all of life’s outcomes may be unhesitatingly ascribed to race. Post, at 24–26. This is so, she writes, because of statistical disparities among different racial groups. See post, at 11–14. Even if some whites have a lower household net worth than some blacks, what matters to JUSTICE JACKSON is that the average white household has more wealth than the average black household. Post, at 11. This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race.
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Accordingly, JUSTICE JACKSON’s race-infused world view falls flat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. 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. JUSTICE JACKSON then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine.
What he was saying in his concurring opinion, which was atypically read out loud by him, was obvious enough by his very own life -- as was Jackson's dissenting opinion.
Brown Jackson laid out a slew of "expert" statistics, such as the impact of historical red-lining and the ongoing disparities in health care outcomes for the lack of achievement now seen in the black community, arguing that affirmative action in college admissions would supposedly remedy it, unwittingly admitting that there was a merit problem to start with. Perhaps she can name one black hospital located in a black urban area with all affirmative-actioned black medical personnel that makes the top rankings in hospitals.
In her furious dissent at Thomas and the Court majority, she wrote:
"With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat," Jackson wrote. "But deeming race irrelevant in law does not make it so in life."
Irrelevant in law to what? And what's this legal 'fiat' she speaks of? Legal means laws, and laws are passed by legislatures. Fiat can only be done by a dictator. Letting people into universities on the basis of race over merit no matter what the law says about equal protection is where the 'fiat' is.
What she described in that series of Jim Crow laws starting on page 70 of her opinion is obviously outrageous to any decent person today, but the laws that created those problems were scrapped years ago. The problems remain. Jackson argues that that's why black people are behind, though she certainly didn't mention the direct cause of the lack of black merit in education which takes us directly to the affirmative action issue, which is that black children are forced into failing public schools run by dishonest teachers' unions with no choice in the matter and can't get out. (My sister, who's an admissions chief at a well-regarded private college has told of sad cases of obviously striving young people from these neighborhoods who still can't measure up to kids in normal educational environments and having to turn them down as a mercy gesture because they won't be able to keep up with the other students. That is sad stuff. Other schools let them in on affirmative action grounds and cynically don't care if they fail. Other schools still will pass them onto the highest levels of education through affirmative action, where the problems continue).
It was the standard argument of the establishment, which Jackson is and always has been very much part of.
Thomas in his concurring opinion, focused on individual merit, individual achievement, and the possibility that people can rise up if they can be judged on merit rather than handed the crutches of affirmative action, which actually hobble them.
Maybe that's because that's his "lived experience" speaking. Unlike Jackson, who grew up in an upper middle class environment with two high-achieving black parents, Thomas got no privileges whatsoever in his life, not even that of speaking the English language, given that his native tongue was Gullah, a black dialect of the outer islands of the southeast coast of the U.S. All he ever got were just a few educational opportunities that he maximized because he was taught to work hard by his grandfather who raised him in the depths of Jim Crow-South Georgia.
Thomas was born on June 23, 1948, in Pin Point, Georgia. Pin Point was a small, predominantly black community near Savannah founded by freedmen after the Civil War. He was the second of three children born to M. C. Thomas, a farm worker, and Leola "Pigeon" Williams, a domestic worker.[8][9][10] They were descendants of enslaved people and spoke Gullah as a first language.[11] Thomas's earliest known ancestors were slaves named Sandy and Peggy, who were born in the late 18th century and owned by wealthy planter Josiah Wilson of Liberty County, Georgia.[12]
Thomas's father left the family when Thomas was two years old. Though Thomas's mother worked long hours, she was sometimes paid only pennies per day, struggled to earn enough money to feed the family, and was forced to rely on charity.[13] After a house fire left them homeless, Thomas and his younger brother, Myers, were taken to live in Savannah with his maternal grandparents, Myers and Christine (née Hargrove) Anderson.[14][a]
Thomas experienced amenities such as indoor plumbing and regular meals for the first time while staying in Savannah.[8] Myers Anderson had little formal education but built a thriving fuel oil business that also sold ice. Thomas has called Anderson "the greatest man I have ever known".[14] When Thomas was ten years old, Anderson started taking the family to help at a farm every day from sunrise to sunset.[14] He believed in hard work and self-reliance, and counseled Thomas to "never let the sun catch you in bed". He also impressed upon his grandsons the importance of a good education.[8]
He later did benefit from affirmative action in its early days -- and it didn't help him. This paragraph is devastating:
From 1971 to 1974, Thomas attended Yale Law School as one of twelve Black students. He graduated with a Juris Doctor degree "somewhere in the middle of his class".[39][40] He has said that the law firms he applied to after graduating from Yale did not take his J.D. seriously, assuming he obtained it because of affirmative action.[41] According to Thomas, the law firms also "asked pointed questions, unsubtly suggesting that they doubted I was as smart as my grades indicated".[42] In his 2007 memoir, he wrote: "I peeled a fifteen-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I'd made by going to Yale. I never did change my mind about its value."[43]
Since he did have merit because of his hard work, that handicapped him, as well as hit his self-esteem and it was something he could do nothing about. No wonder he would rather that admissions systems always be matters of merit.
Jackson, though, with her glib enumerations of various inequalities seen in the black community on average (Thomas couldn't stand that averaging seen in affirmative action admissions, given the range of individual black experiences, which pretty well wipes out individual experience), came from a very different background:
Jackson was born on September 14, 1970, in Washington, D.C.,[7][8] to parents who had been educated at historically black colleges and universities.[9][10][11] Her father, Johnny Brown, attended the University of Miami School of Law and ultimately became the chief attorney for the Miami-Dade County School Board; her mother, Ellery, would serve as the school principal at New World School of the Arts in Miami, Florida.[12][13]
That's a pretty privileged background, well insulated from the impoverished situation of the black applicants she describes. Did she ever know any discrimination? Doesn't sound like it, because if she did, she would have talked about it. She mentions having ancestors she didn't know much about in Georgia -- which is even more insulation from the reality that Thomas knew firsthand.
Her experience with affirmative action was interesting too:
Jackson then studied government at Harvard University, having applied despite her guidance counselor's advice to set her sights lower.[18] At Harvard, she took classes in drama, performed improv comedy, and led protests against a student who displayed a Confederate flag from his dorm window.[19][20] Jackson graduated from Harvard in 1992 with a Bachelor of Arts, magna cum laude. Her senior thesis was titled "The Hand of Oppression: Plea Bargaining Processes and the Coercion of Criminal Defendants".[21]
Might that counselor have been counseling against her applying to Harvard because she wasn't all that good? Or that the counselor was measuring her by the standard of white applicants who didn't get in? And might the fact that she got in suggest that she got in was because of affirmative action? Maybe yes, maybe no -- she does seem quite educated and sharp in her dissenting opinion in many ways. But her opinion is like a parroting of activist talk instead of the case that was put in front of her.
And it's notable that she uses stereotypes in her hypothetical example of James the privileged white princeling legacy admit and John the poor black striver as her extreme examples. How many cases out there are like that, particularly when the issue is the shutout of Asian-American students with top SAT scores> While legacy admissions are another problem that's got to go, that's a separate issue. It's that juxtaposition of extremes through comic-book-style cutouts that doesn't reflect the real world of subtlties and differences of individuals that Thomas wrote about and argued could only be resolved by absolute standards of merit and equal application of the laws and rules.
Jackson in her dissenting opinion with two cookie-cutter stereotypes ignored what Thomas didn't ignore in his -- that other people who are neither black nor white, such as Asian-Americans, are being caught up in this cookie-cutter dichotomy of affirmative action intended to punish whitey and uplift black applicants. Jackson noted in her dissent that both James and John can be admitted, the school only used "whole person" criteria, but utterly ignored that the guy who didn't get admitted as both James and John sailed in, was the high-achieving Asian-American kid, who got no mention whatsoever in Jackson's summary.
The Asian kid was a non-person, not part of this -- and his hard work and merit didn't matter.
Thomas cared about that kid -- the hard worker, the kid who got his merit through hard work the same way he did -- and made the ruling for him. Everyone can achieve merit if they work hard, he effectively argued. Nobody can change the color of their skin, or the past history of wrongs that have since been righted.
That was what Jackson's background and legal logic never understood. She's trapped in a leftist bubble of permanent victimhood for black people, despite not being any sort of victim herself. Thomas is a victim who broke out of that victimhood and achieved his own merit despite the odds against him. What irony we have here -- and proof indeed that Thomas's assertion that all individuals, even those in the same race categories (which I am sure he abhors) are individuals and different ones at that.
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