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07/21/2022

Eric Segall on Originalism and the Affirmative Action Cases
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Clarence Thomas, Race, and Judicial Hypocrisy.  From the introduction:

[T]his blog post is about ... the mythology and hypocrisy of so-called textualist and originalist judges, especially when it comes to race. And the greatest offender of all is Justice Clarence Thomas.

Next year, the Supreme Court is going to hear two major affirmative action cases. It is likely the Justices will end all affirmative action programs run by the government and private educational institutions that receive government money (virtually all of our colleges and universities). There is a reasonable chance that Justice Thomas will write those decisions given his long-standing opposition to any measures that use race to try and ameliorate past racism.

On this issue, and many others, Justice Thomas and his conservative colleagues on the bench are hypocrites, pure and simple. One can be in favor of judicial invalidation of programs that use race to get past race or one can be an originalist/textualist. But one cannot be both. Yet that is exactly what Thomas claims to be. His jurisprudence on race represents his personal political and sociological preferences, nothing more and nothing less. This term's decisions on guns and abortion reinforce this thesis.

And from later on:

The equal protection clause does not mention nor prohibit the use of racial classifications of any kind, much less racial classifications used by majorities to assist minorities. Although we are all guaranteed the “equal protection of the laws,” what that means is highly contestable in the context of generations of slavery, Black Codes, Jim Crow, red-lining, and other formal, legal, and overt racially discriminatory policies used by whites against people of color.

Of course, from the late 19th century to the mid-20th century, the Court allowed all-white universities to completely exclude people of color so there is no longstanding tradition in this country of color-blindness. We do know that the main purpose of the Fourteenth Amendment, like the other Reconstruction Amendments, was originally to help the newly freed enslaved people integrate into society. There is virtually no historical evidence suggesting that a purpose of the Amendments was to tie the hands of people trying to ameliorate the terrible legacy of American racism. 

Justice Thomas has never seriously explored the Fourteenth Amendment's contemporaneous original meaning as applied to affirmative action....

I agree that the upcoming affirmative action cases are a danger for the originalist Justices if they don't develop more of an originalist argument than they have in the past.  Professor Segall goes on to acknowledge some academic originalist work in this area, see here, and that would be a good place for the Justices to start.

Or, better in my view, if they are inclined to hold against the universities, would be to avoid the constitutional question entirely and rest the decision on the original meaning of Title VI of the Civil Rights Act, which on a quick look seems somewhat more clear.