October 24, 2011

Clarence Thomas & Affirmative Action

Twenty years ago today, Clarence Thomas was officially sworn in as a Justice of the U.S. Supreme Court in a small ceremony at the Court. National Review Online marks the occasion with a symposium on Justice Thomas’ impact on the High Court and society. Among the contributors is the Committee for Justice’s Curt Levey, who concludes that

Nowhere is Clarence Thomas’s independent thinking, clarity, and courage more powerful than on issues of race. … Largely because of [his voice on the subject], Thomas has grown from being the first black conservative on the Court to the most influential black conservative of our lifetime.

Levey cites Thomas’ 2003 dissent in Grutter v. Bollinger (upholding racial preferences at the University of Michigan Law School) as the finest example of that voice, noting that it forced even his critics “to acknowledge the genuineness of both his pride in the capability of blacks and his anger at those who demean that ability with preferences.” The full text of Curt’s piece is here and the entire symposium can be found here.

To Justice Thomas’s great disappointment, the Grutter decision left colleges and universities with plenty of latitude to continue their use of racial preferences in admissions in pursuit of diversity. However, that latitude will likely narrow or possibly even disappear before the Supreme Court completes its 2011-12 term next June.

The likely change arises from Fisher v. University of Texas, a lawsuit challenging UT-Austin’s use of race in admissions despite the school’s proven success in achieving racial diversity using non-race-based methods. In a recent discussion of the case at the leading Supreme Court blog, SCOTUSblog, experts agreed that the High Court is likely to add Fisher to its docket for the current term.

CFJ’s Curt Levey was among those contributing to the consensus. His SCOTUSblog post concludes that

Fisher gives the five Justices who are suspicious of racial preferences an excellent opportunity to push universities closer to a middle ground in which they consciously seek racial diversity through plans like the Top Ten Percent with little or no explicit use of race.

Curt’s full explanation of why the Court is likely to take the case can be found here. The entire SCOTUSblog discussion can be found here.