Clarence Thomas’s War On Affirmative Action Was Never Just About the Law
As law students, Clarence Thomas and Sonia Sotomayor both had memorably awful experiences—and took very different lessons from them.
Midway through his third and final year at Yale Law School, Clarence Thomas had yet to receive a job offer from any of the firms to which he’d applied, and he was pretty sure he knew why. In his 2007 memoir, My Grandfather’s Son, Thomas remembered getting the distinct impression that his interviewers viewed him as the product of affirmative action who never should have been admitted to such a prestigious institution in the first place.
“Many asked pointed questions unsubtly suggesting that they doubted I was as smart as my grades indicated,” Thomas wrote. “Now I knew what a law degree from Yale was worth when it bore the taint of racial preference.” After graduating, he said, he slapped the fifteen-cent price tag from a cigar package on his diploma so that he would never forget its value.
As is often the case when Thomas airs his various grievances in public, this narrative omits some context. As the journalists Jane Mayer and Jill Abramson write in their 1994 book Strange Justice: The Selling of Clarence Thomas, Thomas’s experience largely “reflected the still bigoted employment practices” of the time, when elite circles were enforcing the same unspoken rules that benefitted people who looked like Thomas’s interviewers and not like him.
Diversity at white-shoe law firms lagged well behind the diversity of student bodies, which is not saying much: Including him, Thomas’s class at Yale had all of 12 Black people in it. When it comes to elderly law firm partners’ reluctance to hire Thomas in 1974, old-fashioned racism is a far more straightforward explanation than skepticism about whether presumed beneficiaries of newfangled affirmative action programs would be able to hack it.
Thomas, though, has blamed affirmative action ever since. As a justice, he has said that such programs “stamp minorities with a badge of inferiority,” and has rejected the notion that schools have a legitimate interest in racial diversity. Three years ago this month, when the Supreme Court finally banned affirmative action in Students for Fair Admissions v. Harvard, Thomas wrote a concurring opinion arguing that affirmative action taints the accomplishments of all students of color—both those who benefit from affirmative action, and those “who are the same race as those admitted as a result” of affirmative action, since, he wrote, “no one can distinguish those students from the ones whose race played a role in their admission.”
Set aside, for today, Thomas’s assertion that there is a bright-line distinction between students whose admission is the “result” of affirmative action and students whose race played no “role” in it. When he talks about the plight of the Black law student wrongly branded as unqualified for the position he seeks, it is not an abstraction. Thomas is talking about how he perceives himself, and how his memories of Yale shaped his policy preferences five decades later.
Sonia Sotomayor enrolled at Yale Law School two years after Thomas graduated, and like him, she had a memorably bad experience: At a law firm recruiting dinner in 1978, a white male partner helpfully introduced her to the culture of casual racism that would await her if she were to join his firm as a junior associate. “Do you believe law firms should practice affirmative action?” he asked her. “Don’t you think it’s a disservice to minorities, hiring them without the necessary credentials, knowing you’ll have to fire them a few years later?”
When Sotomayor, who graduated summa cum laude from Princeton, replied that affirmative action allowed students of color the opportunity to prove their qualifications just like anyone else, the partner cut to the chase. “Do you think you would have been admitted to Yale Law School if you were not Puerto Rican?” he asked.
Incredibly, this person did not seem to understand that Sotomayor might not want to bill hours alongside someone who asked such questions: In her 2013 memoir, My Beloved World, she says that when she confronted him the next day, he complimented her for not “making a scene” at dinner, and invited her to the firm’s office for further interviews. Sotomayor declined and filed a formal complaint with Yale, which eventually yielded an apology letter from the firm that was significant enough to merit coverage in The Washington Post.
As law students, Thomas and Sotomayor dealt with the same basic, bigoted assumption: that racial preferences put an asterisk on their accomplishments. But Thomas and Sotomayor learned very different lessons: In My Beloved World, Sotomayor said she felt “no need to apologize” for affirmative action, because its purpose was just to “create the conditions whereby students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run.” Although she had “more ground than most to make up” when she started at Princeton and Yale, she said, once she got her foot in the door, her achievements were “as real as those of anyone around me.”
As a Supreme Court justice, Sotomayor has continued to defend affirmative action against the conservative legal movement’s efforts to destroy it. In her dissent in Students for Fair Admissions v. Harvard, she said that the decision rolled back decades of “momentous progress,” and “cements a superficial rule of colorblindness” in a “segregated society where race has always mattered and continues to matter.” Getting rid of affirmative action, she warned, would “entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”
Again, for Sotomayor, the real-world implications of Students for Fair Admissions are not abstractions. She knows firsthand the importance of efforts to “equalize educational opportunities for all students of every race and background.” She also understands the devastating consequences of the conservative supermajority’s decision to deny those opportunities to so many students of color going forward.
The official position of the legal profession, and certainly of the nine lawyers who sit on the Supreme Court, is that none of this history matters—that it simply isn’t relevant to understanding how the Court divines what the Constitution means. Among the justices, there is no tradition quite as sacred as insisting in their public appearances that the work of interpreting the law is not “political,” and that judges “do law, not politics.”
In the context of their time at Yale, though, Thomas’s and Sotomayor’s opinions in the affirmative action cases function as a reminder that Supreme Court justices are real people who do not and cannot set aside their life experiences the moment they put on a robe. When the Court decided Students for Fair Admissions, both Sotomayor and Thomas considered the result important enough that they made a point of reading their opinions from the bench—in Thomas’s case, the first time in almost ten years that any justice read aloud from a concurrence, as opposed to a majority opinion or a dissent.
In Students for Fair Admissions, Thomas and Sotomayor are not only (or even principally) arguing about the law—about what the Equal Protection Clause of the Fourteenth Amendment does and does not allow admissions offices to do when they put together an incoming class. They are outlining their competing visions for shaping a country shot through with racism into something resembling a multiracial democracy. Sotomayor’s solution is to acknowledge this history, and to allow schools to do their part to address it. Thomas, who cares about “fairness” in the law when it comes to elite college admissions and in no other circumstances, prefers to pretend as if this history did not exist.
I am not saying that Clarence Thomas’s fruitless job search or Sonia Sotomayor’s excruciating recruiting dinner are the only reasons they believe what they believe, and voted as they did all these years later. I am saying that these details matter, and that accounts of the death of affirmative action that omit them are incomplete, and are doing you a disservice.
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How about a simpler explanation - Thomas was not hired because law firms didn't like to hire black people.
Thomas looked at that, and decided to be on the side of the racists, because it paid better.
I just finished reading Justice Sotomayor's book and was inspired by her lifestory. I also have watched the PBS Frontline show Clarence and Ginni Thomas: Politics, Power and the Supreme Court. Adversity made Thomas an angry man and Sotomayor a more compassionate person.
There couldn't be a starker contrast. Even though Justice Sotomayor is so often in the minority, her stirring dissents give us hope there will be a better tomorrow.