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June 30, 2023

Clarence Thomas Eviscerates KBJ’s Race-Bait Rhetoric

“A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.”

After the Supreme Court’s 6-3 affirmation of the 14th Amendment by striking down the last vestige of “systemic racism” in academia, “affirmative discrimination” at Harvard, Justice Ketanji Brown Jackson issued a politically partisan and legally dullard dissenting screed. Ironically, Jackson is Joe Biden’s hand-picked SCOTUS diversity hire, and she is now his primary race-hustling advocate on the Court.

Predictably, she petulantly accused the majority Justices of “let-them-eat-cake obliviousness,” insisting they “detached” themselves from “this country’s actual past and present experiences” and the “lived experiences” of the Democrats’ most loyal constituency, black folks.

You won’t find that “lived experiences” standard of justice anywhere in our Constitution’s mandate for Rule of Law over the Left’s rule of men adulteration of our Republic’s founding tenets.

What follows is an excerpt from distinguished Justice Clarence Thomas in from his rebuttal of Jackson’s dissenting rant:

With the passage of the Fourteenth Amendment, the people of our Nation proclaimed that the law may not sort citizens based on race. It is this principle that the Framers of the Fourteenth Amendment adopted in the wake of the Civil War to fulfill the promise of equality under the law. And it is this principle that has guaranteed a Nation of equal citizens the privileges or immunities of citizenship and the equal protection of the laws. To now dismiss it as “two-dimensional flatness,” is to abdicate a sacred trust to ensure that our “honored dead … shall not have died in vain.” A. Lincoln, Gettysburg Address (1863).

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. This is so, she writes, because of statistical disparities among different racial groups. 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.

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. Put simply, “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh-and-blood human beings.” T. Sowell, Wealth, Poverty and Politics 333 (2016). Worse still, JUSTICE JACKSON uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.

Nor do JUSTICE JACKSON’s statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So JUSTICE JACKSON supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood. If an applicant has less financial means (because of generational inheritance or otherwise), then surely a university may take that into account. If an applicant has medical struggles or a family member with medical concerns, a university may consider that too. What it cannot do is use the applicant’s skin color as a heuristic, assuming that because the applicant checks the box for “black” he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person.

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. Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. Social movements that invoke these sorts of rallying cries, historically, have ended disastrously.

Unsurprisingly, this tried-and-failed system defies both law and reason. Start with the obvious: If social reorganization in the name of equality may be justified by the mere fact of statistical disparities among racial groups, then that reorganization must continue until these disparities are fully eliminated, regardless of the reasons for the disparities and the cost of their elimination. If blacks fail a test at higher rates than their white counterparts (regardless of whether the reason for the disparity has anything at all to do with race), the only solution will be race-focused measures. If those measures were to result in blacks failing at yet higher rates, the only solution would be to double down. In fact, there would seem to be no logical limit to what the government may do to level the racial playing field—outright wealth transfers, quota systems, and racial preferences would all seem permissible. In such a system, it would not matter how many innocents suffer race-based injuries; all that would matter is reaching the race-based goal.

Worse, the classifications that JUSTICE JACKSON draws are themselves race-based stereotypes. She focuses on two hypothetical applicants, John and James, competing for admission to UNC. John is a white, seventh-generation legacy at the school, while James is black and would be the first in his family to attend UNC. JUSTICE JACKSON argues that race-conscious admission programs are necessary to adequately compare the two applicants. As an initial matter, it is not clear why James’s race is the only factor that could encourage UNC to admit him; his status as a first-generation college applicant seems to contextualize his application. But, setting that aside, why is it that John should be judged based on the actions of his greatgreat-great-grandparents? And what would JUSTICE JACKSON say to John when deeming him not as worthy of admission: Some statistically significant number of white people had advantages in college admissions seven generations ago, and you have inherited their incurable sin?

Nor should we accept that John or James represent all members of their respective races. All racial groups are heterogeneous, and blacks are no exception—encompassing northerners and southerners, rich and poor, and recent immigrants and descendants of slaves. See, e.g., T. Sowell, Ethnic America 220 (1981) (noting that the great success of West Indian immigrants to the United States—disproportionate among blacks more broadly—"seriously undermines the proposition that color is a fatal handicap in the American economy"). Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping.

To further illustrate, let’s expand the applicant pool beyond John and James. Consider Jack, a black applicant and the son of a multimillionaire industrialist. In a world of race-based preferences, James’ seat could very well go to Jack rather than John—both are black, after all. And what about members of the numerous other racial and ethnic groups in our Nation? What about Anne, the child of Chinese immigrants? Jacob, the grandchild of Holocaust survivors who escaped to this Nation with nothing and faced discrimination upon arrival? Or Thomas, the greatgrandchild of Irish immigrants escaping famine? While articulating her black and white world (literally), JUSTICE JACKSON ignores the experiences of other immigrant groups (like Asians, see supra, at 43–44) and white communities that have faced historic barriers.

Again, universities may offer admissions preferences to students from disadvantaged backgrounds, and they need not withhold those preferences from students who happen to be members of racial minorities. Universities may not, however, assume that all members of certain racial minorities are disadvantaged.

Though JUSTICE JACKSON seems to think that her racebased theory can somehow benefit everyone, it is an immutable fact that “every time the government uses racial criteria to ‘bring the races together,’ someone gets excluded, and the person excluded suffers an injury solely because of his or her race.” Parents Involved, 551 U. S., at 759 (THOMAS, J., concurring) (citation omitted). Indeed, JUSTICE JACKSON seems to have no response—no explanation at all—for the people who will shoulder that burden. How, for example, would JUSTICE JACKSON explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color? If such a burden would seem difficult to impose on a bright-eyed young person, that’s because it should be. History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation.

Nor is it clear what another few generations of raceconscious college admissions may be expected to accomplish. Even today, affirmative action programs that offer an admissions boost to black and Hispanic students discriminate against those who identify themselves as members of other races that do not receive such preferential treatment. Must others in the future make sacrifices to re-level the playing field for this new phase of racial subordination? And then, out of whose lives should the debt owed to those further victims be repaid? This vision of meeting social racism with government-imposed racism is thus selfdefeating, resulting in a never-ending cycle of victimization. There is no reason to continue down that path. In the wake of the Civil War, the Framers of the Fourteenth Amendment charted a way out: a colorblind Constitution that requires the government to, at long last, put aside its citizens’ skin color and focus on their individual achievements.

And a few additional noteworthy comments from the decision:

Chief Justice John Roberts: “Eliminating racial discrimination means eliminating all of it.”

Justice Neil Gorsuch: “The words of the Civil Rights Act of 1964 are not like mood rings; they do not change their message from one moment to the next.”

Justice Thomas: “Justice Sotomayor apparently believes that race-conscious admission programs can somehow increase the chances that members of certain races (blacks and Hispanics) are admitted without decreasing the chances of admission for members of other races (Asians). This simply defies mathematics.”

Chief Justice Roberts: “While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit.”

Justice Thomas: “While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.”

You can read the full opinion here, and Thomas’s full response to Jackson starts on page 97.

Fact is, “affirmative discrimination” has upended Martin Luther King’s maxim, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” Not the color of their skin but by the content of their character.

Biden, having already elevated threats of violence against Justices, fired this shot over their bow: “I think, maybe it’s just the optimist in me, I think that some of the [justices] are beginning to realize their legitimacy is being questioned in ways it hadn’t been questioned in the past. And I think there’s a concern on some, maybe even the Chief Justice…”

Bottom line, as Virginia LtGov Winsome Sears noted: “What you have is the justice who was chosen because she’s black and because she’s a woman. … Slaves did not die in the fields so we could be saying, in this century, that we are victims. They would say to us … we died for you to have an opportunity. Take it! You have that! If you are a victim, that means you need a political savior. You DON’T need them! Stay in school! Study! Burn the midnight oil!”

Responding in similar fashion to Barack Obama’s criticism of the SCOTUS decision, Sen. Tim Scott declared: “Sending the message that somehow the color of your skin means that you will not be able to achieve your goals from an educational perspective, from an income perspective or family formation, that is a lie from the pit of hell. We will not be judged solely by the color of our skin. That’s what the ruling said today.”

Finally, Sen. Elizabeth “Honest Injun” Warren laughingly protested, “An extremist Supreme Court has once again reversed decades of settled law, rolled back the march toward racial justice, and narrowed educational opportunity for all.” Recall that Warren received special consideration as a “minority” after she lied about her “Native American” ancestry on her employment application with Harvard.

Semper Vigilans Fortis Paratus et Fidelis
Pro Deo et Libertate — 1776

(Updated)

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