On Affirmative Action, Clarence Thomas Took a Page From Malcolm X

Understanding the jurisprudence of the conservative Supreme Court justice


Later this month, the U.S. Supreme Court will hear oral arguments in a pair of cases—Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina—which ask whether the use of race as a factor in determining college and university admissions violates the Constitution. One justice who will undoubtedly vote against affirmative action in those cases is Clarence Thomas, who has spent years calling for the practice to be overruled.

"When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement," Thomas wrote in Grutter v. Bollinger (2003), in which the Court upheld the University of Michigan's use of race in law school admissions. "The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed 'otherwise unqualified,' or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination."

Similarly, in the affirmative action case Fisher v. University of Texas at Austin (2013), Thomas maintained that, "although cloaked in good intentions, the University's racial tinkering harms the very people it claims to be helping." He argued that "all applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination."

Thomas' critics sometimes misunderstand his stance in such cases, wrongly accusing him of believing that American racism is simply dead and gone. For instance, New York Times pundit Charles Blow probably spoke for many when he faulted Thomas for "being unable to acknowledge and articulate the basic fact that race was—and remains—a concern."

In fact, a closer look at Thomas' jurisprudence shows that race is one of his principal concerns, including in cases that are not obviously about race. Take Zelman v. Simmons-Harris (2002), in which Thomas joined a majority of the Court in upholding the constitutionality of a school voucher program. "While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children," Thomas wrote. "If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination's effects."

If society cannot end racial discrimination. Those are not the words of someone who doubts the persistence of racism. But they are also not the words of a modern liberal, who would probably say that benevolent government programs can and should be trusted to solve the problem. If anything, Thomas' words are closer to the views of the late Malcolm X, who, like Thomas, preached black self-reliance while distrusting even the most well-intentioned white liberals of his day.

And that resemblance is no wonder, since Malcolm X was one of Thomas' early heroes. "I've been very partial to Malcolm X, particularly his self-help teachings," Thomas told Reason in 1987. "I have virtually all of the recorded speeches of Malcolm X." In his 2007 autobiography, My Grandfather's Son, Thomas wrote that while he "never went along with the militant [racial] separatism" preached by Malcolm X and the Nation of Islam, "I admired their determination to 'do for self, brother,' as well as their discipline and dignity."

That admiration is still present in aspects of Thomas' jurisprudence today. Whether you agree with his take on affirmative action or not, Thomas' views can only be fully understood once you recognize this underappreciated influence on his thinking.