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Yesterday’s Opinions Today!


I will have more on today’s appalling disemboweling of the Voting Rights Act imminently. In the meantime, enjoy this column about why conservative constitutional arguments against affirmative action are wrong:

Perhaps the most salient feature of the Thomas concurrence, considering that it comes from the member of the Court with the strongest avowed to commitment to “originalism,” is the uttter lack of any serious discussion about the historical origins and purposes of the 14th Amendment. As I’ve pointed out before, the reason for this is obvious: There’s no serious “originalist” argument to be made against affirmative action. There’s no reason to believe that the framers and ratifiers of the 14th Amendment intended to eliminate all racial consciousness (as opposed to at least some forms of racial subordination) from state laws. As Justice Thurgood Marshall noted in his opinion in the landmark affirmative action case Regents of California v. Bakke, “Since the Congress that considered and rejected the objections to the 1866 Freedmen’s Bureau Act concerning special relief to Negroes also proposed the Fourteenth Amendment, it is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief measures.”


While Justice Thomas’s concurrence has nothing to say about the history of the 14th Amendment, he does extensively detail the history of defenders of segregation insisting that unjust discrimination was really in the interests of those being discriminated against. To Thomas, the lesson is that the benign motives of affirmative action are beside the point: “The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.”

The problems with this facile “gotcha” are also plainly evident. The crucial difference is that the paternalistic justifications for segregation were offered almost exclusively by the dominant caste. Only in the fantasies of segregationists did African-Americans believe that segregation was good for them, which is why disenfranchisement was necessary to maintain the system. Conversely, African-Americans today overwhelmingly support affirmative action. Thomas isn’t just comparing white university administrators to Jim Crow apologists; he’s comparing the heroes of the civil rights movement to Jim Crow apologists. It’s possible that Martin Luther King and John Lewis are wrong about affirmative action and Strom Thurmond and Jesse Helms happened to be right, but to argue that the former are more comparable to segregationists than the latter is specious in the extreme.

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  • Immanuel Kant

    Of course, Strom Thurmond and Jesse Helms aren’t just comparable to segregationists. They were segregationists.

  • sibusisodan

    Ah, good. That kind of thought occurred to me on reading the opinion, but I couldn’t get it clear in my mind. Thanks for the link.

  • I was pleasantly surprised that the AMA came out in strong favor of affirmative action in med. school admissions. Not exactly an organization that is minority controlled.

  • Isn’t the most obvious problem with the analogy is that the segregationist arguments were “This bad thing we’re doing to backs is actually good for them, though no white person would embrace that good fro themselves.” whereas the affirmative action argument is, “This good thing we’re doing for blacks is actually good for them, so good that whites would’t mind a bit of it as well.”

    This difference also explains why blacks disagreed with segregationist claims and support affirmative action.

    While affirmative action is almost certainly, in many senses, beneficial to whites, that’s not the primary goal!

  • Barry Freed

    Fuck. Shit. Fuck.

    That is all.

  • Rick Massimo

    Thomas and Scalia: They’re not particularly bright people, are they?

    • You have to be a scab covered cock knob to appreciate their brilliance.

    • cpinva

      “Thomas and Scalia: They’re not particularly bright people, are they?”

      oh, I think they know exactly what they’re doing.

      • Scott Lemieux

        Yeah, brains aren’t the problem.

  • Pingback: The Nickronomicon » Fuck the Supreme Court()

  • Kurzleg

    It’s hard to understand how a Supreme Court justice could offer such a patently absurd comparison as evidence in favor of his position. Had he done so in law school, you’d hope that it would bring a failing grade.

    • There’s no one who’ll flunk these guys now. They’ve got their degrees, they’ve got their permanent positions on the court, no one but angry people online are going to point out that they’re morons. They’ll continue to get invitations to the DC cocktail parties, the media will continue to kiss their asses, Congress is probably overjoyed about the whole thing, and the secret kickbacks from corporate “friends of the court” will continue as they have.

      It’s good to be a Supreme Court justice.

      • cpinva

        “It’s good to be a Supreme Court justice.”

        why yes, yes it is. the best part is, you don’t even have to recuse yourself from a case, regardless of how blatant the conflict of interest you have is. who’s going to overrule you?

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