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In rejecting affirmative action, Justice Thomas is no hypocrite

Judges vow to uphold the Constitution “faithfully and impartially,” without regard to their personal history.

Affirmative action may have played a role in launching Justice Clarence Thomas’s career, but that fact does not bind him to support racial preferences.ALLISON V. SMITH/NYT

The Supreme Court will soon decide a pair of cases dealing with racial preferences at Harvard, the nation’s oldest private college, and the University of North Carolina, the oldest public university. How the court will rule is still unknown. But about two things we can be certain.

First, Justice Clarence Thomas will maintain, as he has in all his years on the court, that racial affirmative action is incompatible with the 14th Amendment and therefore unlawful. Second, Thomas will be smeared as an ungrateful hypocrite for opposing race-conscious admissions when he himself was the beneficiary of such policies.

If there is any point on which Thomas has been rock-solid, it is his conviction that admitting students to college on the basis of color is illegitimate as a matter of law and insidious as public policy. “The Constitution abhors classifications based on race,” Thomas wrote in the 2003 case of Grutter v. Bollinger. “Every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

Thomas’s antipathy toward any form of discrimination by race is rooted in his own life story.


He was born in the segregated Deep South and knew the stinging bigotry of Jim Crow at first hand. He attended the College of the Holy Cross in Worcester, which recruited him as part of a program to attract Black men as undergraduates. In 1971, when Thomas entered Yale to study law, the school’s stated goal was for 10 percent of incoming students to be nonwhite. Though Thomas initially reveled in his admission to Yale, he soon felt the stigma of being there because of his race.

“I learned the hard way that a law degree from Yale meant one thing for white graduates and another for blacks,” he later wrote in his poignant autobiography, My Grandfather’s Son. He had done well at Yale, but the law firms he subsequently interviewed with made it plain that they applied an affirmative action discount to his Ivy League credentials and assumed he wasn’t really as smart as his grades indicated.


“The worst forms of racial discrimination in this nation have always been accompanied by straight-faced representations that discrimination helped minorities,” Thomas declared in a fiery 2013 opinion in Fisher v. University of Texas. Just as the champions of affirmative action claim to be acting in the best interests of society at large and Black people in particular, so did the champions of segregation, leading Thomas to observe that “the lesson of history is clear enough: Racial discrimination is never benign.”

No fair-minded person can doubt that Thomas’s legal and moral rejection of racial preferences is deeply rooted.Even ardent defenders of affirmative action, such as Justice Sonia Sotomayor, acknowledge the sincerity and humanity of his views.

But many people are not fair-minded. Again and again, Thomas has been blasted for hypocrisy and ingratitude by critics who loathe him for opposing affirmative action despite the race-conscious policies that enabled him to rise in the world.

The attacks can be venomous. “It’s impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself,” Maureen Dowd wrote in The New York Times. When Thomas casts his “inevitable” vote against racial preferences, Earl Ofari Hutchinson fumed in a HuffPost column, he should be asked “how and why someone who has been the biggest beneficiary of affirmative action could be the biggest hypocrite in opposing it.”


The argument is absurd.

At the most basic level, judges are never supposed to be swayed in judgment by personal considerations or loyalties. They take an oath to administer justice and uphold the Constitution “faithfully and impartially,” without regard to their personal history. If Thomas concludes that affirmative action is unlawful, his job is to vote against it — period.

Would Thomas’s foes raise the charge of hypocrisy in any other context? Imagine a case involving the legality of legacy preferences in college admissions. If some justices got into law school on the strength of family ties, should that oblige them to support legacy admissions as a matter of law? When a case involving a president comes before the court, are justices who were appointed by that president ungrateful hypocrites if they don’t automatically rule in his favor?

Affirmative action may have played a role in launching Thomas’s career, but that fact does not bind him to support racial preferences. Those who attack his “hypocrisy” are really attacking him because he is a Black man who doesn’t share their view. However they dress it up, that is what they find intolerable.

Jeff Jacoby can be reached at Follow him on Twitter @jeff_jacoby. To subscribe to Arguable, his weekly newsletter, visit