Jun 30, 2023 - Politics & Policy

Affirmative action exposes SCOTUS' raw nerves

Illustration of an unbalanced scale balanced on top of a pencil.

Illustration: Allie Carl/Axios

The end of affirmative action was a lot more personal and emotional — a lot more raw — than what Americans are used to seeing from the Supreme Court.

Why it matters: There have always been impassioned dissents, but it's rare for the justices to argue, out in the open, the way regular people argue.

  • They might write incandescently about the holes in another justice’s legal reasoning, but they rarely make it personal. They rarely invoke anecdotes from their own lives to make or bolster a point. They rarely draw assumptions about each other’s motives.

But in 237 pages worth of opinions yesterday, it was clear — in ways the justices rarely allow it to be clear — that the disagreements here were rooted in the real world, not simply competing interpretations of the equal protection clause.

  • It was clear that the court‘s three justices of color were drawing on personal experience, not just legal formalism.
  • And it was clear, frankly, that some of them were mad at each other.

Mainly, Justice Clarence Thomas seemed to be mad at Justice Ketanji Brown Jackson, who wrote a stinging dissent accusing the court’s majority of “let-them-eat-cake obliviousness” and an “ostrich-like” hope that ignoring race would make racial inequities disappear.

  • Thomas wrote his own opinion, as he often does — ostensibly to agree with the majority ruling, but also to take on Jackson.
  • “As she sees things, we are all inexorably trapped in a fundamentally racist society,” Thomas wrote. He said she set out to “label all blacks as victims,” adding: “Her desire to do so is unfathomable to me.”

Jackson’s dissent focused on the majority opinion, addressing Thomas only in a footnote — but a brutal one.

  • “Justice Thomas’ prolonged attack responds to a dissent I did not write in order to assail an admissions program” that does not exist, she wrote, saying he “ignites too many more straw men to list, or fully extinguish.”

Thomas has said repeatedly that he believes he was treated poorly early in his legal career because people perceived him as a beneficiary of affirmative action, and wrote in his opinion yesterday that he believes race-conscious admissions policies can ultimately hold Black students back.

  • Justice Sonia Sotomayor responded with, as she put it, “the most obvious data point available to this institution today.”
  • “The three Justices of color on this Court graduated from elite universities and law schools with race-conscious admissions programs, and achieved successful legal careers,” she wrote.

What’s next: The court has two more high-profile cases to resolve today — the fate of President Biden’s plan to forgive student loans, and a case asking whether some business owners can turn away LGBTQ customers.

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