Politics Mondays: Judging Clarence Thomas by Eugene Volokh

Lots of people have criticized Justice Clarence Thomas' anti-race-preferences opinion (from Monday's Grutter v. Bollinger decision concerning the University of Michigan Law School's admissions policy), on the grounds that there's reason to think that he has benefited from some such preferences.

Maureen Dowd in The New York Times has a particularly intemperate expression of this view: "It's impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself. So maybe he is disgusted with his own great historic ingratitude."

The most basic objection to this view, I think, is that if a judge thinks that a policy is unconstitutional, he has an obligation to so vote, whatever his personal history might be. "Gratitude" isn't a proper basis for constitutional decisionmaking.

But beyond this, I wonder how far these critics would take their criticism. In the 1970s, the Supreme Court held that sex discrimination was unconstitutional. The justices who voted for this position had spent their lives in a nation in which women were largely excluded from the legal profession. Those men may well have benefited from this exclusion - when half the population is out of the competition, the competition is easier. Maybe if men hadn't gotten preferences, some of those justices wouldn't have made it onto the high court.

Should Justices Brennan, Marshall, and the others have said "Oh, we benefited from sex discrimination, so it would be ungrateful for us to now hold that sex discrimination is unconstitutional"? Or should they have resigned en masse, in shame at having gotten this benefit that they realized was improper? Should people have berated them for having gotten the advantage of preferences for males, and then denying future generations of men the same advantage ("pull[ing] up the ladder after [themselves]")?

Likewise, until the early 1960s, many states set up legislative districts in a way that favored less populated rural areas over more populated urban ones. Many legislators' careers benefited from this sort of affirmative action for rural places. Some of them likely became judges. Was it then wrong for these judges and legislators to promote a "one-man, one-vote" policy in which all districts had equal population? After all, they were doing away with a policy that had helped them, and that could have helped future rural politicians and rural voters (of course, by hurting urban politicians and urban voters).

Or how about a hypothetical future scenario: Today the Senate is an affirmative-action program for small states; Vermont gets as many senators as California. If some small-state senators decide this is wrong, and try to change it (very hard to do, but theoretically possible), would Thomas' critics damn them as disgusting ingrates?

I'll bet that most of Thomas' critics (the ones that make the criticism with which I started this post) don't think there's anything remotely wrong with people trying to overturn these unfair advantages, even when they themselves had benefited from them. In fact, many would think such actions are especially worthy, because the judge or legislator would be voting out of principle, and against policies that might unfairly benefit people with whom he'd feel close (fellow males, rural voters, or small-state residents).

So Thomas' critics aren't really faulting him for opposing policies from which he himself benefited. They're really faulting him for opposing policies that they like. But instead of acknowledging that they simply disagree with Justice Thomas on the substance, they engage in personal attacks - saying that his actions aren't simply mistaken as a matter of constitutional law (a matter on which reasonable minds may differ), but "disgust[ing]" because of his personal history.

And the saddest thing is the racial double standard that this produces. When white Justice Scalia opposes race preferences, people at least debate him on the merits. But let black Justice Thomas do it, and he gets vitriolically and personally attacked. Not fair, not egalitarian, and not good for constructive, thoughtful dialogue about race.

Eugene Volokh teaches free speech law, copyright law, the law of government and religion, and a seminar on firearms regulation policy at UCLA Law School and can be contacted via e-mail at volokh@law.ucla.edu

Monday, June 30, 2003