Justice Ruth Bader Ginsburg’s dissent in the Supreme Court’s affirmative action decision last week reminded the world of this gem from the late law professor Thomas Reed Powell:
“If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.”
That is what the great legal minds on the court did, according to Ginsburg, when they put the University of Texas’s freshmen admissions policy under a microscope for eight months and then weren’t sure what they’d seen. They sent it back for a lower court to take another look.
Fisher v. University of Texas had the potential to be a cease-and-desist order for race-conscious admissions policies, but the court clearly could not find a majority of justices willing to go there just now. One of the striking things about Justice Anthony M. Kennedy’s scant 13-page opinion is that there is very little discussion of the matter at the heart of the issue: race.
The only real debate — and it was an interesting one — came from Ginsburg, the only justice willing to say that UT’s policy passed muster, and Justice Clarence Thomas, the only one who wrote to say that the university’s use of race is categorically prohibited by the Constitution.
Their separate opinions at least give two opposite views of the role racial considerations should play in American social policy, though neither attracted a co-signer from the six other justices who participated in the decision (Justice Elena Kagan recused herself, presumably because she worked on the issue while solicitor general).
Ginsburg said that racial considerations should be allowed and that the use should be freely acknowledged.
“I have several times explained why government actors, including state universities, need not blind themselves to the still-lingering, everyday evident, effects of centuries of law-sanctioned inequality,” said Ginsburg, 80, in announcing her dissent from the bench.
“Among constitutionally permissible options, I remain convinced, those that candidly disclose their consideration of race are preferable to those that conceal or obscure what drives them.”
About 75 percent of the freshmen at the University of Texas at Austin are admitted under the state’s unique Top 10 rule, in which those who finish at the top of their high school class are automatically in. Applicants filling out the rest of the class undergo a “holistic” examination, in which race is one of the factors considered.
The two have combined to make UT one of the most diverse major universities in the country. But Ginsburg said it was irrational for the court to consider the Top 10 system racially neutral, and the other suspect.
The Top 10 law works only because of the de facto segregation of Texas neighborhoods and high schools; it was designed that way. It is what made her think of law professor Powell’s quip.
“Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious,” she wrote.
Thomas voted along with the rest of the court to send the case back to the U.S. Court of Appeals for the 5th Circuit for more work, because he said it did not perform the strict evaluation required when a government program considers race.
He disagreed with Ginsburg about the Top 10 program but said the real culprit was any use of racial preferences.
“It taints the accomplishments of all those who are the same race as those admitted as a result of racial discrimination,” Thomas wrote. Most blacks and Hispanics at UT are admitted under the Top 10 plan, “but no one can distinguish those students from the ones whose race played a role in their admission.”
Those themes — that affirmative action is simply another form of racial discrimination and that it imposes a “stigma” on those who benefit from it — are not new from Thomas, 65. He has asserted those views in previous cases and in writing about his own life, where he was one of a handful of African Americans in a seminary, at Holy Cross University and at Yale Law School.
He believes affirmative action made his Yale degree worth less.
In his 20-page concurrence, Thomas linked the recognition of current racial classifications with two of the court’s most notorious rulings — Korematsu v. United States, which allowed the internment of people with Japanese ancestry during World War II, and Plessy v. Ferguson, which blessed “separate-but-equal segregation.”
(Ginsburg in a footnote said she has noted in past cases that “actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken” to end entrenched discrimination.)
Thomas also embraced the “mismatch theory” raised in several briefs supporting the challenger to UT’s policy: that admitting blacks and Hispanics with lower test scores and grades to elite institutions does more harm than good.
He explained: “The university admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched. But, as a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete.”
Several organizations filed briefs to the contrary, calling the theory “dangerous” and “discredited.”
It seemed that the case Abigail Fisher filed against the University of Texas once might have provided a chance for more engagement on such theories, but few believe the opportunity has passed.
The court’s stern direction to courts to rigorously examine universities’ race-conscious plans should spawn additional challenges. It seems likely that it is only a matter of time before another reaches the high court.
For previous High Court columns, go to washingtonpost.com/fedpage.