A constitution that puts judge-made law first will be an increasingly unoriginalist constitution as precedent is piled on precedent.
In Fisher, the Supreme Court majority clarified Grutter v. Bollinger’s holding that higher education admission plans that promote diversity by taking race into account are subject to strict scrutiny. As he did in Gutter and Parents Involved in Community Schools v. Seattle School District No. 1, Justice Thomas wrote a significant separate opinion setting forth his views on the issue.
Thomas’s concurrence in Fisher made the following points:
1. Traditional strict scrutiny for race discrimination requires a compelling state interest, which is either national security or remedying past discrimination. The educational benefits from diversity are not a compelling state interest.
2. Brown and its progeny rejected the idea that a school’s survival would be a compelling state interest. It had been claimed that desegregation would lead to public schools being closed down, but that was not thought adequate to justify segregation.
3. The desegregation cases rejected arguments virtually identical to those advanced by Texas: that differential standards prepares Texas’s students to become leaders in a diverse society, improves interracial relations, and is a temporary necessity because of the enduring race consciousness of society.
4. While Texas probably believes it is helping minorities, racial discrimination is never benign. The worst forms of discrimination, such as slavery or segregation, were justified as beneficial. Here blacks and hispanics are harmed as they are far less prepared for admission, would have access to college in any event, and are stamped with a badge of inferiority.
What is interesting to me is the methodology of Justice Thomas’s opinion. As the above summary shows, his opinion relies on one view of the prior cases, on his claim that affirmative action is similar to traditional discrimination against blacks, and on a vision of the colorblind constitution.
In this respect, Justice Thomas’s opinion methodologically resembles a Justice Brennan opinion. It employs various tools of legal analysis to powerfully defend a position. His arguments will strongly appeal to those who agree with his vision, while they will be rejected by those who disagree with that vision. As I have mentioned in the past, what is surprising about Justice Thomas’s opinion is that he does not mention anything about the original meaning of the 14th Amendment. This great originalist somehow leaves these concerns to the side when discussing affirmative action.
My recent paper argues that Justice Thomas need not abandon originalism in this area. There are plenty of strong arguments that he could rely upon to justify at least significant portions of his view. Perhaps my paper was not released in time for the Justice to rely on it; perhaps his chambers did not see it; or perhaps he did not regard it as persuasive.
Still, if one is going to be an originalist – and as strong an originalist as Justice Thomas is – then one should not be ignoring originalist arguments in such an important area as this one.
I don’t mean to be too hard on Justice Thomas. It is common practice for justices to rely on different types of methodological arguments. Justice Brennan certainly had his Atascadero, which was a powerful originalist argument against sovereign immunity. But Justice Thomas’s inconsistency here is unnecessary. He could have made an originalist argument.