The Daily - How Clarence Thomas Came to Reject Affirmative Action

Episode Date: July 14, 2023

Supreme Court Justice Clarence Thomas, the second Black justice to sit on the court after Thurgood Marshall, has spent years opposing affirmative action. When the high court struck down the policy last month, Justice Thomas was one of the most influential figures behind the ruling.Abbie VanSickle, who covers the Supreme Court for The Times, explains the impact affirmative action has had on Justice Thomas’s life and how he helped to bring about its demise.Guest: Abbie VanSickle, a Supreme Court correspondent for The New York Times.Background reading: A look at Justice Thomas’s path to the Supreme Court.Here’s what the justices have said in the past about affirmative action.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Natalie Ketroweth. This is The Daily. Yesterday, we heard from Americans reflecting on the end of affirmative action and decades of race-conscious admissions at colleges across the country. Now we turn to one of the most powerful figures behind that reversal, Supreme Court Justice Clarence Thomas, the second Black justice to sit on the court. Thomas spent years opposing affirmative action,

a policy that arguably shaped his career. Today, my colleague Abby VanSickle explains the impact of affirmative action on Justice Thomas' life and how he helped bring about its demise. It's Friday, July 14th. Abby, a couple weeks ago, as we know, the Supreme Court ended affirmative action

by a 6-3 majority. And one of the most interesting voices in all of this was Clarence Thomas, who wrote, in his opinion, this scathing takedown of this longstanding feature of American education. And so I want to understand, how did he arrive at this opinion? So I cover the Supreme Court for The New York Times, and I have spent the last several weeks just trying to understand and dig into the life of Clarence Thomas, in part to really be able to understand and articulate his views on affirmative action. And to understand Justice Thomas, I think you really have to start

with where he grew up. He grew up in Pinpoint, Georgia, in just really extreme poverty. And he moved with his sibling and his mom to Savannah. And in his autobiography, which he reads for the audiobook, he describes what that was like. The only running water in our building was downstairs in the kitchen, where several layers of old linoleum were all that separated us from the ground. And his mom was working as a maid, and she couldn't take care of Clarence and his brother, so they went to live with his grandparents. And that's important to know because his grandfather becomes this really central figure in his life. Despite the hardships he had faced, there was no bitterness or self-pity in his heart.

As for bad luck, he didn't believe in it. Instead, he put his faith in his own unaided effort, the one factor in life that he could control. And he taught me to do the same. In addition to growing up in poverty, Clarence Thomas was also growing up in the segregated South. In the 50s and 60s, Blacks steered clear of many parts of Savannah. No matter how curious you might be about the way white people lived, you didn't go where you didn't belong.

When he was a teenager, Thomas decided he wanted to be a priest, and he enrolled at a nearly all-white seminary. decided he wanted to be a priest, and he enrolled at a nearly all-white seminary. And just as Thomas has written and talked about this and has explained how difficult it was, that he was really taunted and singled out because of his race. And maybe the most upsetting experience for him happened after he graduated high school and went to seminary in Missouri. He's there in 1968 when Martin Luther King is assassinated. I walked into the dormitory one April afternoon and heard someone shout that Martin Luther King Jr. had been shot. That's good, another student replied. I hope the son of a bitch dies. And that's a really seminal moment for Justice Thomas. His brutal words finished off my vocation and my youthful innocence about race. So it's at this point that Clarence Thomas decides to abandon his plans to become a priest and instead to get a liberal arts education.

And he has talked about how a nun encouraged him to look at Holy Cross College up in Massachusetts. And in the fall of 1968, he enters college there. And that coincides with a time when colleges and universities across the country, in the wake of Martin Luther King's assassination, are trying to recruit and support Black students. This is the height of the civil rights movement. And Justice Thomas is in a small group of Black students at this liberal arts college. And he joins together with those students. They form a student union for Black students to really try to actually have a meaningful presence on the campus. The more I read about the Black Power Movement,

the more I wanted to be a part of it. He talks about his admiration for Malcolm X, and he writes about going to demonstration and being part of this movement and how important that was in shaping his worldview. What was the point of working within the system? Segregation, lynchings, black code, slavery, the endless litany of injustices raced through my head. Surely the time for politeness and nonviolent protest was over.

the nonviolent protest was over. He very much considers himself to be a liberal and in some ways a Black nationalist at that point in his life. Wait, I just, can we pause for a second? You're telling me Clarence Thomas, one of the most iconic conservatives on the Supreme Court, maybe the most famous Black conservative ever, was a radical. That's right. To me, this came as a surprise when I started reading and really digging into this because

of how we all know Justice Thomas now. But at the same time, he's starting to question his views. The beast of rage kept on gnawing at my soul. But the more I saw of radicalism, the more I doubted that it had any answers to offer me. views are jeopardizing how hard he has worked to get this education and to keep himself on track so that he's not headed back into poverty in Savannah. He ends up graduating from Holy Cross and going to Yale Law School. And he is so excited. He gets to campus and then pretty much right away, he starts to have doubts. Affirmative Action, though it wasn't yet called that, had become a fact of life at American colleges and universities.

This is in the fall of 1971, and he comes in the same year that Yale Law School starts an Affirmative Action program. year that Yale Law School starts an affirmative action program. And before long, I realized that those Blacks who benefited from it were being judged by a double standard. As much as it stung to be told that I'd done well in the seminary despite my race, it was far worse to feel that I was now at Yale because of it. He talks about and writes about how the white students, he felt like they tokenized him, that he was viewed as somebody who only got into this elite school because he was black. I felt as though I'd been tricked,

that some of the people who claimed to be helping me were in fact hurting me. It sounds like, Abby, even though Justice Thomas may have gotten into Yale in part because of these preferential policies that are just starting, he's also bristling against the fact that these policies exist and that they may be in some way affecting how people perceive him on campus. Yeah, that's right. He does not like how he thinks he's perceived as less than as somebody who is only there because he's Black. And he just reacts very strongly against this. And he signs up for a curriculum of classes that he thinks are going to help improve himself. He's not taking civil rights law.

He's taking corporate law, tax, bankruptcy, and really trying to define himself as somebody who's going to take those kind of classes and not be defined as a Black student. And does he feel like that strategy works? Like, does he feel as though he's able to dispel this notion that he's somehow less than because he's a Black student? No. It was futile for me to suppose that I could escape the stigmatizing effects of racial preference. And I began to fear that it would be used forever after to discount my achievements. If anything, it seems to get worse in his time there. He also writes about how he deeply regrets that he put anything about his race in his application because somehow he just can never shake the feeling that that just casts a shadow over his entire law school

experience. I was bitter toward the white bigots whom I have held responsible for the unjust treatment of blacks, but even more bitter toward those ostensibly unprejudiced whites who pretended to side with Black people while using them to further their own political and social ends. He has this analogy that he writes about in his memoir about the liberal snake. At least Southerners were upfront about their bigotry. You knew exactly where they were coming from,

just like the Georgia rattlesnakes that always let you know when they were ready to strike. And it's basically the idea that in the South, where he grew up, that people were open about their racism, that there was no hiding it. Not so the paternalistic big city whites who offered you a helping hand

so long as you were careful to agree with them, but slapped you down if you started acting as if you didn't know your place. Like the water moccasin, they struck without warning, and now I had stepped within striking distance. distance. But that at Yale, it's cloaked in this sort of nice veneer where it's like he's being helped, but actually he thinks it's still holding him down. And so when he is about to graduate, he has a young son. He's married. He has crushing student loans is how he describes it. He is under a lot of pressure to find a great, well-paying job. And he writes that all of his friends tell him, you know, you're at Yale Law School. You are going to have your choice of places. And he interviews with all of these top law firms and he does not get a single offer. And he interviews with all of these top law firms, and he does not get a single offer.

And he credits that to being looked down on and viewed by these law firm partners as somebody who is only admitted because he's Black. And he thinks that's the reason he does not get a job. Now I knew what a law degree from Yale was worth when it bore the taint of racial preference. I was humiliated and desperate. The snake had struck. So it sounds like he thinks he's seeing that stigma he felt at Yale Law School

carrying over in his mind to the job market. That's right. So he starts casting a wider search for a job. And there's a Yale alum who's the attorney general in Missouri, John Danforth. And he's skeptical of Danforth. He's a conservative. But Clarence Thomas takes the job in the Missouri Attorney General's office and the two of them hit it off right away. And he does ask that he be assigned to cases so that he's not tokenized. He wants a broad range of cases. He wants corporate. He doesn't want to be pigeonholed as the black lawyer that they've brought into this office. Meaning he's

actively looking for cases that he hopes will kind of dispel any notion that he's there because he's interested in civil rights issues or because he's Black. Yes. He wants to build himself out as somebody who is there on his own merits and he really wants to be thought of as the same as everybody else in the office. And, you know, Danforth is elected to the Senate. And Clarence Thomas eventually joins Senator Danforth's office as an aide. He moves to Washington, and he is, you know, in the conservative legislative world. What does that look like? So once Clarence Thomas enters this circle,

things really take off for him. At a conference, he meets Juan Williams, who writes this big article about him in the Washington Post. And that's really the first time that Clarence Thomas has ever had this kind of spotlight on him. Soon after, he gets a job with the Department of Education working in civil rights. And then he gets recruited to lead the EEOC, which is a really big deal. It's the federal agency focused on employment discrimination.

and he ends up taking them. And so after serving as the head of the EEOC, he's picked for the D.C. Circuit, which is one of the most prestigious federal judge postings you can have. And then after a short time there in 1991... The White House has called this news conference in considerable measure because we're told the president is going to announce on this occasion his nominee to the Supreme Court. Justice Thurgood Marshall retires from the Supreme Court.

I am very pleased to announce that I will nominate Judge Clarence Thomas to serve as Associate Justice of the United States Supreme Court. And President Bush nominates Clarence Thomas to replace him. This is Thurgood Marshall, the first Black Supreme Court justice, the famous civil rights litigator, a lion of the left. And now President George H.W. Bush pushes to fill his seat with Clarence Thomas, who would be the second Black justice, but on the opposite side of the ideological spectrum. Yes, that's right. Thank you, Mr. President.

I'm honored and humbled by your nomination of me to be an associate justice of the Supreme Court of the United States. As a child, I could not dare dream that I would ever see the Supreme Court, not to mention be nominated to it. But when President Bush announces that he has selected Clarence Thomas to fill the seat on the Supreme Court, reporters ask, did you choose him because he's Black to the president? ask, did you choose him because he's Black to the president? What I did was look for the best man. And the fact that he is Black and a minority has nothing to do with this in the sense that he is the best qualified at this time.

And we had a very thorough screening process then. We had one now. But this is something, you know, it continues for Clarence Thomas, these questions, these doubts about whether he was in fact chosen for the color of his skin. Judge, a question for you. What do you say to critics who say the only reason you're being picked is because you're black?

I think a lot worse things have been said. I disagree with that, but I'll have to live with it. And I'd imagine he feels like that stigma continues to follow him. Members of the committee. Oh, yeah, definitely. My name is Anita F. Hill, and I'm a professor of law at the University of Oklahoma. The confirmation process for Justice Thomas, you know, he writes about at first it seemed like it was going to be a pretty sort of typical affair. But then there were these bombshell allegations.

My working relationship became even more strained when Judge Thomas began to use work situations to discuss sex. And Clarence Thomas is at the center of it. This is a circus. It's a national disgrace. And from my standpoint, as a Black American, as far as I'm concerned, it is a high-tech lynching. He told the whole world that he felt that these allegations and the way that the hearings proceeded, he called it a high-tech lynching. And it is a message that unless you kowtow to an old order, this is what will happen to you.

You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree. a committee of the U.S. Senate rather than hung from a tree. And right in those words, you can just feel how he is continuing to believe that his race is just at the center, even though it's like the thing that he is trying to move away from. But as we all know, he makes it to the court. Yes, that's right. It's a narrow confirmation, but he joins the Supreme Court. And he has written about it and talked about for years the lingering effects of that and how that has really just clung with him over his life. over his life. He and his wife, Jenny, had been living in sort of a bustling suburb. They move out to this house in the woods that can't be seen from the road. He really isolates himself

from the broader world. He doesn't give speeches to the sort of big audiences that other justices do. He's hyper selective about where he appears and who he's going to talk to, even by the standards of the Supreme Court. But while his world becomes small and sort of closed off from public life, he's further embraced by elite conservative circles. From my own reporting and from ProPublica and others, we know he's benefited immensely from some of the wealthy people in his circle. Okay, so after hearing about his life story and really trying to understand his opposition to affirmative action, for Clarence Thomas, I guess the story is that he experiences it as primarily a negative thing that he was constantly pushing against, something that has diminished his accomplishments,

that has stigmatized him. And then because of his confirmation hearing, he isolates himself. He joins this conservative group that becomes like an echo chamber for some of those views. Yeah, it's totally fascinating to me to try to sort of understand how this has played out in his life.

And so you see Justice Thomas on the Supreme Court as affirmative action comes up over the years, that he is always opposed. And that it's only now that the court has moved to the right and his voice is in the majority that you get this scathing opinion where he lays out his views

on this policy in a personal way. We'll be right back. Okay, so Abby, Thomas gets on the bench. He spends years writing opinions against affirmative action in the minority. And now, finally, he's in the majority. And his views can really shape the court's decision. This is his moment. That's right. At the end of this Supreme Court term, the justices announce their opinion,

striking down affirmative action. Justice Thomas joins that majority, and he also writes a 58-page concurring opinion where he lays out his views about affirmative action in great detail. And he also takes the time to read from this from the Supreme Court bench, which is actually kind of a big deal. It usually signals that a justice has particularly strong views about a case or an issue. And what does Thomas say? Take us through what his arguments are. Right. So there's obviously a lot in these dense 58 pages, but basically he's making three main points. And the first two are similar to what Chief Justice Roberts rates in his majority opinion,

but the third point he makes is unique and deeply personal. So the first point is his view that the Constitution is colorblind. As he puts it, two discriminatory wrongs cannot make a right. What he's basically saying is that he thinks that affirmative action violates the 14th Amendment, But he thinks that affirmative action violates the 14th Amendment, that you cannot use race in higher education to make decisions about who gets in and who doesn't, regardless of whether the decision actually helps or hurts students, that basically the Constitution just bars it in the first place. His interpretation of the 14th Amendment, you're saying, is that it just says the government should treat everyone the same in every context and that it doesn't really matter what the end result of that is. Yes, that's right. And that's really different from what Justices Jackson and Sotomayor, the liberal justices on the court, say in their dissents,

these two in particular push back really strongly against Justice Thomas's views on this. And they take a totally different reading of the 14th Amendment. They point out that it was passed alongside race-conscious laws, and that if you look at the historical context, that it's passed to help people coming out of slavery. And Justice Jackson, who's the only other Black justice on the bench, lays out the ways in which historically Black people were cut off from home loans, from access to education, that all of these historical patterns and trends are really important to understand why affirmative action is necessary and how it came to be.

And in their view, Justice Thomas is just, you know, he's basically living a dream. They're saying you can't dismiss this context of racist structures in America when interpreting the Constitution, when interpreting the 14th Amendment. That's right. And that brings us to a second point, which is really that affirmative action was never supposed to be about reparations or slavery because the Supreme Court has only allowed affirmative action policies based on diversity. But even that, this idea that racial diversity has educational benefits, is just not something that Justice Thomas agrees with. Why not?

So Justice Thomas says that there's nothing concrete to point to that diversity improves outcomes. Things like test scores. He just says that the evidence is not there. And he also says that he's not convinced that racial diversity would improve anything. He gives an example of his view that if there are two students, one white and one black, from the Upper East Side and Manhattan, that these two students might have a lot more in common than two white students, one from rural Appalachia and the other from a wealthy San Francisco suburb.

Basically, that race is a bad metric to even get to what he sees as true diversity in a classroom because not every person of the same race has had the same life experience. That's right. He basically is laying out his view that race is too broad of a brush to paint people with. He agrees that students who've overcome adversity should be given a leg up. It's just that he doesn't think that race is the proxy to do that. But Abby, just to push back for a second, I mean, in making that argument, isn't Thomas also kind of assuming that

the only metric these schools are using to evaluate students is race when it's clearly not? Right. So that's exactly what Justices Sotomayor and Jackson are saying, that that's not what anyone is actually doing. So for example, Justice Jackson and her dissent points out that UNC, one of the schools in this case, uses a list of 40 criteria to make their admissions decisions. They're looking at the relative advantage or disadvantage of the student, family income level, the formal education environment that the student came from. And in the liberal justices' view, race is an important part of someone's history. And that is putting blinders on, it's sort of willfully ignoring something to not have race be allowed to be considered as one of the many factors. be allowed to be considered as one of the many factors.

But they sort of struggle to respond directly to his claim that the benefits of affirmative action haven't been borne out in numbers like test scores. But that said, their point is that education is to help build a leadership pipeline and that racial diversity in the classroom helps break down stereotypes, which makes everyone more responsible citizens. pipeline and that racial diversity in the classroom helps break down stereotypes, which makes everyone more responsible citizens. And that is just a squishier way of thinking about the benefits of education and its purpose than Justice Thomas's. Yeah, it sounds like it reveals a fundamental difference in how they view education and the benefits there. He's saying,

show me the numbers. And the liberal justices are saying, look, education is about preparing civic leaders, helping mold better citizens. That's right. They're having a separate conversation. And because Justice Thomas doesn't see the value that the liberal justices see, he views it as a zero-sum game that only harms students and primarily white and Asian students. He doesn't see benefits, only losses. And I think it's just a good example of how there's a fundamental disconnect in how these justices think about this policy. Okay. So what's the third big point Thomas makes in his opinion? Okay, so what's the third big point Thomas makes in his opinion?

So the third point that Thomas makes is a really personal one, and it's that affirmative action actually stigmatizes Black people. And this feels really drawn from his own experience, and you can see that in his opinion. There's one passage that I was really struck by where he says, I've long believed that large racial preferences in college admissions stamp Blacks and Hispanics with a badge of inferiority. And he's actually quoting himself from a previous case. And the use of his phrase, I have long believed, really stood out to me because it's a belief. He is not citing to extensive case law or to precedent other than his own writings about this. And Justice Sotomayor

points this out. She describes that Justice Thomas is citing nothing but his own long-held belief and that really there's no other evidence. It sounds like what he's arguing here is that this stigma that he perceives as a harm that comes from race-conscious admissions outweighs any benefit to the individual or to the society, that people will have to live with the perception for the rest of their careers that they didn't deserve to get where they got because they benefited from an open door early on. Yeah, I mean, just reading this, I'm really struck by the argument that he's making here because it feels personal. And Clarence Thomas is on the Supreme Court. And he came from deep poverty in rural Georgia in the Jim Crow South

and made it all the way to the highest court in the land. And the way that he writes about this issue, you know, it kind of leaves me to wonder if he's wrestling with whether, you know, there's some kind of asterisk to his name because he potentially benefited from some of these programs. And you could see this decision as Thomas removing that stigma for those who follow a path like his.

Not that he doesn't believe that he deserves to be somewhere, but that it would remove any doubt in anyone else's mind that he and other people in his situation belong where they are. and other people in his situation belong where they are. Even though the liberal justices and experts say that the actual practical effect of this decision striking down affirmative action is that it will lead to fewer Black and Hispanic students entering the doors of these elite institutions that are a pipeline to leadership positions in American society, like the U.S. Supreme Court.

Abby, thank you. Thank you. We'll be right back. Here's what else you need to know today. When employers make Wall Street and greed their priority and they forget about the essential contributors that make the machine run. We have a problem. Leaders of the SAG-AFTRA union, which represents about 160,000 television and movie actors, voted to go on strike starting Friday after a breakdown in contract negotiations with a group of studios. We came together in strength and solidarity and unity with the largest

strike authorization vote in our union's history. The actors are joining union screenwriters who have been on strike since May, setting off Hollywood's first industry-wide shutdown in 63 years. SAG-AFTRA and the Alliance of Motion Picture and Television Producers, which represents Hollywood companies, are divided on a range of issues, including pay and the use of artificial intelligence. And on Thursday, the Food and Drug Administration approved a birth control pill to be sold over the counter for the first time in the United States, a milestone that could significantly expand access to contraception. birth control method available over the counter. And reproductive health experts say it could be especially useful for young women and teenagers who struggle to deal with the logistical hurdles

involved in visiting a doctor to get a prescription. Today's episode was produced by Ricky Nowetzki, Nina Feldman, Asta Chaturvedi, and Eric Krupke. It was edited by Paige Cowett and Lexi Dia. Contains original music by Dan Powell and Marion Lozano and was engineered by Alyssa Jane Moxley. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. Special thanks to Muj Zaydi and Sydney Harper. Muj Zaydi, and Sydney Harper. That's it for The Daily.

I'm Natalie Kittroweth. See you on Monday.