Supreme Court’s two Black justices diverge on affirmative action
(CN) — The Supreme Court’s two conservative black members of the Court — Clarence Thomas and Antonin Scalia — have made diverging views about affirmative action.
Scalia, in a dissent joined by Thomas, said the Court should limit affirmative action programs that rely on race, saying they are the antithesis of the principle on which the United States is founded.
“The Constitution gives racial preferences to minorities only to ensure that they are not excluded from the political process,” Scalia said in the case of Fisher v. University of Texas.
Scalia argued that the Constitution never intended that government help black Americans gain access to the courts.
But Thomas, in a separate dissent joined by Justice Anthony Kennedy, said Congress has broad discretion to enforce affirmative action, and the Supreme Court has no business telling states how to make their programs work.
“This case is about how a state may go about making a political choice among competing applicants,” he said.
Thomas said the Court should defer to the political choices by the states when considering race-conscious programs.
“To hold otherwise,” he wrote, “would be to overrule everything this Court has ever said about racial preferences, which must be strictly construed and limited to their precise context in the Fourteenth Amendment.”
Scalia, who is also the Court’s lone Catholic member, told a federal appeals court last year that states had a strong right to deny students such as the boy who was shot in the 2004 school shooting in Connecticut as much as they want because they had a right to set their own educational priorities.
“I just can’t see any reason why we shouldn’t have a presumption against racial classifications,” he told the appeals court.
But Thomas said in a June 2002 case that federal courts should take states at their word when they say they want to avoid “inferior education” for black students.
“It is hard for me to conceive of why states and localities cannot make informed decisions
