100% Colorblind, 90% of the Time

Justice Thomas yesterday in Johnson v. CA, the temporary prison segregation case:

Indeed, Johnson concedes that it would be perfectly constitutional for California to take account of race “as part of an overall analysis of proclivity to violence based upon a series of facts existing in that prison.” But that is precisely what California does. It takes into account a host of factors in addition to race: geographic or national origin, age, physical size, mental health, medical needs, criminal history, and, of course, gang affiliation. Supra, at 4. California does not simply assign inmates to double cells in the reception centers based on race–it also separates intraracially (for example, northern from southern Hispanics or violent from nonviolent offenders).

Now, the point is not that this is completely unreasonable. I don’t have a strong opinion about this case, and perhaps the temporary segregation is justified. I would almost certainly vote with Stevens (who argues that state-enforced racial segregation is always unconstitutional), but Thomas’s dissent isn’t entirely implausible. The big problem is that it is egregiously inconsistent with his previous reasoning in affirmative action cases, in which both he and Scalia (who joined Thomas’s dissent here have argued that the “Constitution” is color-blind, with no exceptions.

Here’s Thomas is Grutter v. Bollinger. If segregation can, in extreme cases, be defensible, then surely the Court should defer to university officials (as well as the United State military and many Fortune 500 corporations) who deem that simply considering race as one factor among many accomplishes crucial goals, right? The answer, of course, is “no”:

The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all…

For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, (Harlan, J., dissenting).

Scalia also invokes the first Justice Harlan in Adarand v. Pena:

Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual…To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

The affirmative action cases are already embarrassing to Scalia and (especially) Thomas because they are professed originalists. But while the position that the Constitution is simply color-blind is certainly a plausible textual reading of the Equal Protection clause, it is virtually indefensible in terms of original intent. Obviously, it is exceptionally implausible that the 14th Amendment–which, after all, was ratified byThe Reconstruction Congress, was understood to proscribe ameliorative racial classifications. What’s worse, neither Thomas nor Scalia have ever even bothered to attempt to make the case in originalist terms.

But this really give away the show. Not only do Thomas and Scalia find that the “color-blind” Constitution permits state-mandated racial segregation, they don’t even believe the policy should be subject to strict scrutiny. “The Constitution is color-blind….unless you’re a prisoner, in which case racial classifications don’t even require heightened scrutiny” is a risibly untenable position. Thomas’s use of precedents to establish that prisoners lack even the most basic fundamental rights won’t wash; after all, five members of the court have never endorsed the position that the Constitution prohibits ever taking race into account, and that’s never stopped Thomas. (More importantly, the Court has never ruled that university administrators have to ignore race entirely.) Nothing in the text or history of the 14th Amendment can sustain this position. Either one of the positions held by Thomas and Scalia in these cases is defensible, but together they simply collapse.

Gerald Gunther famously cracked that Alexander Bickel–who argued that the Supreme Court was a “forum of principle” that should make extensive use of procedural rules to duck politically difficult cases–required “100% insistence on principle, 20% of the time.” This is far worse. If there was any question about whether Thomas and Scalia’s abandonment of originalism in the affirmative action cases was an unprincipled expedient, there can no longer be. And, certainly, my tolerance for admirers of Scalia and Thomas attacking more liberal justices for being “result-oriented” has gotten even lower. And after Bush v. Gore, I wouldn’t have thought that was possible.