Clarence Thomas and the Colorblind Constitution

Last week the U.S. Supreme Court agreed to hear the case of Shelby County v. Holder. At issue is Section 5 of the Voting Rights Act of 1965, a provision requiring certain states and localities to receive approval from either the Justice Department or the federal judiciary before changing their election procedures.

Last week the U.S. Supreme Court agreed to hear the case of Shelby County v. Holder. At issue is Section 5 of the Voting Rights Act of 1965, a provision requiring certain states and localities to receive approval from either the Justice Department or the federal judiciary before changing their election procedures. Originally intended as a temporary measure to defeat the voting rights abuses prevalent under Jim Crow, Section 5 has been repeatedly extended by Congress, most recently in 2006. The Supreme Court will consider whether this latest extension exceeds congressional authority and violates both the 10th Amendment and Article IV of the Constitution.

Writing at The Washington Examiner, Ohio Northern University law professor Scott Douglas Gerber argues that the outcome in this case, as well as the outcome in the recent affirmative action case Fisher v. University of Texas at Austin, is likely to be shaped in large part by the judicial philosophy of Justice Clarence Thomas. As Gerber explains, Thomas has long been critical of race-conscious government policies, including both affirmative action and the modern extensions of the Voting Rights Act, though his views have so far been been expressed primarily in dissenting and concurring opinions. In Gerber's view, Fisher and Shelby County each offer the real possibility for Thomas to write a landmark majority opinion. "With these two cases," Gerber argues, "the nation's highest ranking African American jurist has been provided with an unprecedented opportunity to commit the Court to the notion of color-blind constitutionalism for which he has been working for most of his professional life." Gerber also offers this prediction:

Edgar Fiedler famously warned that "He who lives by the crystal ball soon learns to eat ground glass." But it would be naive to ignore that a very conservative Court has agreed to decide both Fisher v. University of Texas and Shelby County v. Holder during the current term. If the justices end racial preferences in admissions and scrap Section 5 (and I expect they will), and if Thomas writes one or both of the majority opinions (and I expect he will), Thomas will have cemented his legacy by ensuring that each American, no matter the color of his skin, is treated as an individual and not as a member of a racial or ethnic group.

I'm less confident we'll see a Thomas-penned majority in either of these cases, particularly Fisher, where Justice Anthony Kennedy strikes me as the horse to bet on, but Gerber makes a strong case for why we're at least likely to see Thomas' approach reflected in the outcomes.