The Hypocrisy of Justice Thomas’ Color-Blind Constitution

Thomas, on behalf of the other five conservative justices, emphasized that text and history must be the guiding lights for judges to determine the constitutionality of both gun laws and many other constitutional rights. Similarly, Justice Samuel Alito, writing for the majority inapplied a strong text and history approach, which Thomas used in his concurrence, to suggest the complete overruling of all substantive due process cases.

This extreme and overly narrow focus on originalism and textualism, of course, has been Thomas’ calling card for his entire judicial career. The real inspiration for Thomas’ preferred results is how they accord with Republican Party politics, not a good faith assessment of our Constitution’s text and history. Nowhere is this hypocrisy more obvious than on issues of race.

Universities across the country take race into account in order to build racially diverse classes. Most of the universities that use race in admissions are still largely white and many take legacy and donor status seriously, which, of course, supports white applicants. The question the court will confront next year is whether these universities may take race into account at all.

The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot. I will not twist the Constitution to invalidate legacy preferences or otherwise impose my vision of higher education admissions on the Nation.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.A plaintiff challenging a state affirmative action program must find the asserted right in this section of the 14Amendment.

同性婚を法制化した2015年の「結婚の平等」判決を覆すかと思っていたらこっちが先か。「結婚の平等」についてはこないだ連邦議会下院で多くの共和党議員も賛成して保護法は通過したしな。それにしてもクラレンス・トーマス判事、1967年のLoving vs Virginia判決を覆すおつもりは…あったら怖いか。

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