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Is Right the New Left?

Is Right the New Left?

An Analysis of Justice Clarence Thomas’s Concurring Opinion In the Seattle and Louisville Cases

By Kendra Hamilton

Just over a month after the Supreme Court of the United States’ ruling in the Seattle and Louisville cases, news analysts and school district officials from Boston to Berkeley, Calif., from Knoxville, Tenn., to Evanston, Ill., are still trying to assess its impact on their student reassignment programs.

But the community of scholars seems to be riveted by an aspect of the case that has yet to draw much attention: the ironic role played by two touchstone cases, Plessy v. Ferguson of 1896 and Brown v. Board of Education of 1954.

“Who betrayed the legacy of Brown v. Board of Education?” is how legal blogger Michael C. Dorf — an author and the Isidor and Seville Sulzbacher Professor of Law at Columbia University — frames the question.

For the community of civil rights lawyers and scholars, the answer to that question is clear. People are saying, “This decision, in some ways, is like Bakke all over again, but even worse, even more restrictive,” says Anita S. Earls, director of advocacy for the University of North Carolina’s Center for Civil Rights.

U.S. Supreme Court Justice Clarence Thomas, on the other hand, in his concurring opinion for the June 28  ruling in Parents Involved in Community Schools v. Seattle School District No. 1 et al., seems to suggest exactly the opposite.

Invoking “Thurgood Marshall’s Bible,” Justice John Marshall Harlan’s dissent in Plessy v. Ferguson — the case that created the legal rationale for “separate but equal” — Thomas wrote:“I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan’s view in Plessy: ‘Our Constitution is color blind, and neither knows nor tolerates classes among citizens’. My view was the rallying cry for the lawyers who litigated Brown.

“The segregationists in Brown embraced the arguments the Court endorsed in Plessy. Though Brown decisively rejected those arguments, today’s dissent” —  that is to say, the minority opinion endorsing race as a method of assigning students in the Seattle and Louisville schools — “replicates them.”

It’s a bold and audacious statement Thomas is making here: that he, and his view of the Constitution, are the true heirs to the legacy of Brown, while those who disagree with him — who believe that race can be used in certain circumstances to uphold constitutional aims — have betrayed that legacy.

The question is, is it true? Many say no.

“Justice Thomas’s use of Justice Harlan’s quote in the Plessy dissent is completely ahistorical — and quite disingenuous,” says Goodwin Liu, an assistant professor of law at the University of California, Berkeley and co-director of the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity.

Noting that Thomas quotes Harlan four times in his concurring opinion, Liu calls it “particularly egregious that Justice Thomas has used that quote so much because Thomas professes to be an originalist in constitutional interpretation. He professes to go to the original meaning of what was intended by the Constitution or statutes or authors like Harlan.”

Liu cites the entire paragraph in question, not just the sentences that Thomas pulls from it. “What Harlan actually says is, ‘In the view of the Constitution, in the eyes of the law, there is no superior dominant ruling class of citizens.’

Then he says, ‘There is no caste here.’

Then comes the quote: ‘Our Constitution is color blind and neither knows nor tolerates classes among citizens.’

“Although some of us would like to put our modern imprint on what Harlan said in 1896, over 110 years ago, I just don’t think that’s a plausible reading of what Harlan really meant,” says Liu.

Indeed, he argues that a true originalist interpretation would involve reading Harlan’s words in the context of the racial caste system that mired former slaves at the bottom of society. Efforts to undermine that caste system, including voluntary efforts to ensure “diversity” using racial means, should be interpreted as part of the legacy of Plessy and Brown, not a betrayal of that legacy.

Earls agrees. “The reason Thomas can write an opinion citing the Plessy dissent and come to a completely opposite conclusion,” she says, seems to be rooted in modern interpretations of the meaning of color blindness.
Modern interpretations seem to turn on color blindness as it affects individuals rather than groups or classes of individuals.

“It’s a simple idea, and it’s an easy picture for people to get in their minds. But, in essence, if we’re blind to color, we have to be blind to disadvantage,” Earls says.

And legal cases such as the Seattle and Louisville cases, which more and more narrowly define the grounds upon which disadvantage can be attacked, “have the effect of making it seem it’s impossible to do anything about structural racism, the way racial disadvantage is ingrained in a variety of institutions.” “So in all of these moves, to say we shouldn’t keep data broken down along racial lines or that we shouldn’t do redistricting with consciousness of the race of voters in the various districts, the impact is to make disadvantage invisible, to make institutions that have any practices or policies or procedures that have a disparate impact on minorities invisible.

“So it’s like it’s just getting worse.”

And there’s no hope for change for the foreseeable future, Liu adds. “This is going to be the way it is as long as the current conservative majority is on the court.”

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