While I normally wholly disagree with Thomas and his outcomes, I do feel like he made some strong points in his dissent. I explained in another post, and Ginsburg states in her concurrence, that many minority students receive subpar education. Thomas acknowledges this, and in my opinion, goes too far by saying that because of this, these students "find that they cannot succeed in the cauldron of competition." While I think this is an unfair characterization, I think it is a popular one today. Because of this, I follow his reasoning in the next couple paragraphs.
Thomas states the following: "When blacks take positions in the highest places of government, industry, or academia, it is an open question whether their skin color played a part in their advancement." And he is 100% right. Though this opinion is over 20 years old, this is still common assumption. If you go on social media, it is full of people being called "diversity hires." Most of the time, these people are just as qualified as a white candidate. Yet, because of the stigma around affirmative action in education and the workplace, people assume that minority candidates cannot be as successful. It is interesting that we are currently seeing an active dismantling of all diversity efforts, yet these comments persist. It makes me wonder if this truly stems from the legacy of affirmative action, or from the deep-rooted racism of many Americans.
You make a great point about stigma. That concern shows up in a lot of the affirmative action cases and it’s so true that we still see the stigma today in “diversity hire” comments.
But Thomas’s way of framing it is very troubling. He turns real problems with unequal schools and resources into a claim that students themselves are lacking. Justice Ginsburg, by contrast, keeps the focus on systems, not stereotypes.
I wanted to interact with Abigail's post because I think she raises an important point. Thomas's line of logic regarding how minority students are treated as result of affirmative action being employed is correct, but I would challenge us to think about the inverse as well. Even in a world without affirmative action, there's nothing stopping individuals with deeply embedded racist beliefs from preventing minority candidates from reaching institutions of higher education or workplaces because of implicit and/or explicit bias. Frankly, it would seem that there is no escaping racism, and I don't think that's a cynical thing to admit. I think that what's worse is doing away with affirmative action or setting an arbitrary time limit on it because of "concerns" about racist beliefs being re-affirmed in some way by it. It's not that I don't believe Justice Thomas holds that view, but I certainly don't think it's as genuine as it could be. I also would reject the notion that's been raised in class that affirmative action is in some way leading to the end of racism or the end of a society that thinks of race. I don't think that's the right way to think of affirmative action as a legal concept nor do I think it's consistent with an understanding of racism as a social concept.
In Bakke, Justice Blackmun states that the United States "must and will reach a stage of maturity where the action along this line is no longer necessary," and in Grutter, O'Conner expects that in 25 years (2028) "the use of racial preferences will no longer be necessary to further interests approved today." Is the Court acknowledging that sometime in the future race based admission protocols will eventually become unconstitutional? And if it is, how can something be constitutional now and, without any change to the letter of the law, become unconstitutional at some other point in time? I feel like that is completely counter to stare decisis. To me this echoes the flaws of Korematsu and Hirabayashi. If a right is a right, no temporary circumstance can justify its violation.
Great point. The Court’s idea is that strict scrutiny depends on whether race-conscious measures are necessary. That can change over time: what passes today might fail tomorrow if the factual need disappears.
Critics say that makes rights feel temporary, while supporters say it’s just the same test applied to changing circumstances. Justice Thomas rejects this entirely, insisting the Constitution is “colorblind” and race-based measures are never justified.
While I normally wholly disagree with Thomas and his outcomes, I do feel like he made some strong points in his dissent. I explained in another post, and Ginsburg states in her concurrence, that many minority students receive subpar education. Thomas acknowledges this, and in my opinion, goes too far by saying that because of this, these students "find that they cannot succeed in the cauldron of competition." While I think this is an unfair characterization, I think it is a popular one today. Because of this, I follow his reasoning in the next couple paragraphs.
Thomas states the following: "When blacks take positions in the highest places of government, industry, or academia, it is an open question whether their skin color played a part in their advancement." And he is 100% right. Though this opinion is over 20 years old, this is still common assumption. If you go on social media, it is full of people being called "diversity hires." Most of the time, these people are just as qualified as a white candidate. Yet, because of the stigma around affirmative action in education and the workplace, people assume that minority candidates cannot be as successful. It is interesting that we are currently seeing an active dismantling of all diversity efforts, yet these comments persist. It makes me wonder if this truly stems from the legacy of affirmative action, or from the deep-rooted racism of many Americans.
You make a great point about stigma. That concern shows up in a lot of the affirmative action cases and it’s so true that we still see the stigma today in “diversity hire” comments.
But Thomas’s way of framing it is very troubling. He turns real problems with unequal schools and resources into a claim that students themselves are lacking. Justice Ginsburg, by contrast, keeps the focus on systems, not stereotypes.
I wanted to interact with Abigail's post because I think she raises an important point. Thomas's line of logic regarding how minority students are treated as result of affirmative action being employed is correct, but I would challenge us to think about the inverse as well. Even in a world without affirmative action, there's nothing stopping individuals with deeply embedded racist beliefs from preventing minority candidates from reaching institutions of higher education or workplaces because of implicit and/or explicit bias. Frankly, it would seem that there is no escaping racism, and I don't think that's a cynical thing to admit. I think that what's worse is doing away with affirmative action or setting an arbitrary time limit on it because of "concerns" about racist beliefs being re-affirmed in some way by it. It's not that I don't believe Justice Thomas holds that view, but I certainly don't think it's as genuine as it could be. I also would reject the notion that's been raised in class that affirmative action is in some way leading to the end of racism or the end of a society that thinks of race. I don't think that's the right way to think of affirmative action as a legal concept nor do I think it's consistent with an understanding of racism as a social concept.
In Bakke, Justice Blackmun states that the United States "must and will reach a stage of maturity where the action along this line is no longer necessary," and in Grutter, O'Conner expects that in 25 years (2028) "the use of racial preferences will no longer be necessary to further interests approved today." Is the Court acknowledging that sometime in the future race based admission protocols will eventually become unconstitutional? And if it is, how can something be constitutional now and, without any change to the letter of the law, become unconstitutional at some other point in time? I feel like that is completely counter to stare decisis. To me this echoes the flaws of Korematsu and Hirabayashi. If a right is a right, no temporary circumstance can justify its violation.
Great point. The Court’s idea is that strict scrutiny depends on whether race-conscious measures are necessary. That can change over time: what passes today might fail tomorrow if the factual need disappears.
Critics say that makes rights feel temporary, while supporters say it’s just the same test applied to changing circumstances. Justice Thomas rejects this entirely, insisting the Constitution is “colorblind” and race-based measures are never justified.