Balkinization: Talking 'bout my generation

Talking 'bout my generation

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Melissa Murray

By all accounts, Justice Ketanji Brown Jackson has already made her mark on the high court. Since joining the Court this fall, she has been a vocal presence at oral argument, posing incisive hypotheticals and sharp questions. Indeed, Jackson’s active questioning is a sharp contrast to Justice Clarence Thomas, the Court’s other African American justice, who, until recently, was well-known for his taciturnity at oral argument.

It is perhaps inevitable that observers would draw comparisons between Justices Thomas and Jackson. After all, this is the first time the Court has had two African Americans on the bench at the same time. In many ways, Justice Jackson is the perfect foil for Justice Thomas. Nominated by a Democratic President, she joins the Court’s hobbled liberal wing as it faces off against an emboldened conservative super-majority in which Justice Thomas is both the senior member and an intellectual leader. And while Justice Thomas has often framed constitutional issues in terms of their impact on Black men, Jackson, who is the first Black woman to serve on the Court, is positioned to identify the implications of the Court’s jurisprudence for other constituencies who also have been overlooked in the Court’s jurisprudence.

These comparisons between Justices Thomas and Jackson highlight the fact that, in terms of race and gender, this is the most diverse Supreme Court in history. And, in the case of Thomas and Jackson, the Court’s racial diversity makes clear the ideological and viewpoint diversity that often exists within a particular constituency. But interestingly, it is not just that Justices Thomas and Jackson diverge in their ideological perspectives; it is that their differences are, in part, the product of another set of diversity markers: age and experience. Although much has been made of Thomas and Jackson’s shared racial identity, few commentators have explored their intraracial generational divide. Yet, their experiences as members of the pre- and post-Brown eras will undoubtedly inform the Court’s work.

Born in 1948 in Pin Point, Georgia, a small, predominantly Black community near Savannah, Justice Thomas comes from an entirely different generation from that of his most junior colleague—the generation that bore witness to the struggles of segregation and the birth of the Civil Rights Movement. As he has discussed, Thomas’s early childhood was framed against the backdrop of de jure segregation. He was just six years old when the Court decided Brown v. Board of Education, and on his telling, the Court’s decision had little immediate effect on his day-to-day life. As Thomas recounts in his autobiography, My Grandfather’s Son, despite Brown’s promise of integration, his Southern childhood offered few opportunities for interacting with whites.

Indeed, it was not until his adolescence, when he transferred from the predominantly black St. Pius X High School to St. John Vianney’s Minor Seminary, that Thomas experienced life in a predominantly white milieu—and it was not the rose-colored vision of progress that proponents of integration touted. As one of a handful of Black students at St. John Vianney’s, Thomas experienced discrimination—and chafed at what he viewed as the Catholic Church’s unwillingness to forcefully confront and combat racism in its midst. In the wake of the shooting of civil rights leader Martin Luther King, Jr., Thomas recalls a white classmate hoping “the son of a bitch died.”

Thomas would later transfer from seminary to the College of the Holy Cross in Worcester, Massachusetts, where he became interested in Black nationalism and helped found the Black Student Union. Upon graduating from Holy Cross, he attended Yale Law School, from which he graduated in 1974. If Holy Cross forged Thomas’s interest in Black nationalism, then Yale Law was the crucible for his conservatism. One of a handful of Black students in his class, Thomas understood that affirmative action played a role in his admission to the storied law school, but he bristled at the “monkey on [his] back”—the latent assumption that he was unqualified for the seat he occupied.

His antipathy for affirmative action intensified upon graduation. Despite Yale’s strong reputation and placement record, Thomas found himself scrambling for a job. As he explained in his autobiography, the mismatch between his elite degree and his job prospects was likely the result of affirmative action policies, which caused employers, like professors and classmates, to discount minority students’ elite credentials. In protest, he affixed a 15-cent sticker to the frame of his Yale diploma—a caustic statement about the value of his Ivy League credentials. By his own account, his Yale experience was formative—and informs to this day his views about affirmative action.

If Thomas’s upbringing and early education bore the residue of segregation and the challenges of the nascent Civil Rights Movement, Justice Jackson’s upbringing and education was emblematic of the post-Brown generation. Like Thomas, Jackson can trace her roots back to enslavement and was raised in the South. Unlike Thomas, however, Jackson’s childhood was not spent in the shadow of Jim Crow. Born in 1970 in Washington, D.C. and raised in Miami, Florida—arguably more cosmopolitan than Pin Point—Jackson’s formative years were spent in the integrated environments that Brown and the Civil Rights Movement (eventually) birthed. This is not to say that her early years were devoid of racism or discrimination; rather it is to say that she was raised in a climate in which racial integration was a feature of public life. As a student at Miami Palmetto Senior High School, a sprawling public high school in Dade County, Jackson was the class president and a star on the school’s the debate team. In her high school yearbook, she is featured alongside a white male classmate—the two students voted “most likely to succeed.”

Upon graduation, Jackson matriculated at Harvard College and later at Harvard Law School, where the university’s admissions policies, shaped by the Court’s decision in Bakke v. Regents of the University of California (and later Grutter v. Bollinger), prioritized diversity and the prospect of inclusive classroom environments. In short, from elementary school to the Court, where she clerked for Justice Stephen Breyer, Jackson spent her formative years in integrated environments where she learned and worked alongside people of different backgrounds. Any talk of affirmative action’s stigma was roundly countered by her own dazzling academic and professional successes.

With all of this in mind, it is unsurprising that the generational contrast between the Court’s two Black justices was on full display at the oral argument in Students for Fair Admissions v. University of North Carolina, one of two challenges to affirmative action policies currently before the Court. Throughout the marathon session, Justice Thomas peppered the advocates with the same question: “I’d like you to give us a specific definition of diversity in the context of the University of North Carolina. And I’d also like you to give us a clear idea of exactly what the educational benefits of diversity at the University of North Carolina would be.” His point was obvious: to challenge the view that diversity yields educational benefits sufficient to justify the deployment of race-conscious admissions policies. And critically, to make this point, Justice Thomas repeatedly drew on his own experiences in segregated environments. As he explained to Ryan Park, who argued in favor of the state’s affirmative action policies, “I didn’t go to racially diverse schools, but there were educational benefits.”

The colloquy with Park recalled Thomas’s concurring opinion in Missouri v. Jenkins, a challenge to a program aimed at remedying the harms of intentional racial segregation. There, Justice Thomas opened forcefully, noting that “[i]t never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.” He continued, challenging the view that “any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites,” and insisting that “[t]he point of the Equal Protection Clause is not to enforce strict race mixing, but to ensure that blacks and whites are treated equally by the State without regard to their skin color.”

If Justice Thomas was convinced of a color-blind Equal Protection Clause and the notion that diversity’s benefits were largely cosmetic, then Justice Jackson approached the issue from an entirely different perspective—indeed, a perspective that seemed born of an entirely different generational experience. Unlike Thomas, Jackson said little about the purported benefits of diversity in the collegiate environment. Indeed, it appeared as though, for her, the benefits were obvious—and obviously justified the limited use of race in the admissions calculus. Instead, her questions focused largely on whether, in the context of an holistic admissions calculus, one could ever say that race had been determinative in the decision to admit a candidate, and whether race was, for many candidates, a constitutive aspect of identity that they were entitled to present in their admissions applications.

The juxtaposition between the two Justices’ approaches was striking. Indeed, at times, Thomas appeared every bit the septuagenarian he is, musing that “when a parent sends a kid to college, that they don’t necessarily send them there to have fun or feel good or anything like that; they send them there to learn physics or chemistry or whatever they’re studying.” Get off my lawn and hit the books, kids!

By contrast, Justice Jackson, who recently returned to Harvard to celebrate her thirtieth college reunion and whose older daughter is currently an undergraduate there, seemed more comfortable with the prospect that the benefits of higher education are not confined to a program of study, but rather include the myriad experiences that one has in and outside of the classroom and beyond. Her approach to the case focused more granularly on the limited use of race in the admissions calculus and the way in which racial identity has been understood—at colleges and elsewhere—as a core aspect of one’s identity.

She hammered home the latter point in a hypothetical she posed to Patrick Strawbridge, who argued against race-conscious admission policies. Would a fifth generation North Carolinian whose family members had all attended UNC be permitted to note this family background on her application? Would he be permitted to explain that “I want to honor my family’s legacy by going to this school”? The answer was clear: Yes.

Jackson then posed the counterfactual: What about a fifth generation North Carolinian whose ancestors had been enslaved and whose family members had been denied entry to UNC because of the institution’s history of segregation? Could this applicant note his family’s background as part of his appeal to “honor [his] family legacy by going to this school”? Strawbridge sputtered, “Well, I think –I think –I think because, if –if it is the racial aspect of the application, then that’s –equal protection requires that –that people of all races be treated equally.” Jackson volleyed back. The two scenarios posed “almost exactly the same set of circumstances,” but only one’s experience—the legacy applicant’s—could be considered in the post-affirmative action landscape that Strawbridge favored. Under Strawbridge’s logic, the other applicant—the Black applicant—was “not allowed to say [his race or that his family was excluded from attending UNC because of race] and . . . the university is not allowed to take that into account.”

The distinction, in Jackson’s view, was nonsensical—the experiences of both applicants and their families had been shaped by the practices of enslavement and de jure segregation in North Carolina. And these experiences were constitutive of each applicant’s understanding of her identity. On this account, Jackson maintained, the distinction was likely unconstitutional: “Because it relates to race, precisely because it relates to race, I think you might have an equal protection problem in saying that [the Black applicant] can’t get credit for [their family experience] when someone else can.”

It was a remarkable exchange—and even more remarkable when considered in tandem with Justice Thomas’s colloquies and questions in that argument. Here were two African American jurists both mining the vein of enslavement and segregation—and their own experiences—in a case that focused, however imperfectly, on how best to cleanse the stains of our recent past. In their respective exchanges, both Justice Thomas and Justice Jackson made clear that opinion on these issues—in the Black community and everywhere else—is far from monolithic.

But they also demonstrated that there were temporal and experiential differences that might also shape one’s understanding of these vexed questions, even in circumstances where there is a common racial identity. Whereas Justice Thomas’s experience of first-generation remedial measures was clouded by the prospect of stigma and assumptions of inferiority, Justice Jackson’s experience reflected the opportunities and access that integration’s advocates promised. Their experiences—and the resulting approaches to affirmative action—highlighted not only the differences between conservatives and progressives on this fraught issue, but a yawning generational divide that may well exacerbate ideological fractures as the Court moves toward a decision on affirmative action.

But critically, the generational gap that divides Thomas and Jackson might also be viewed as an endorsement of very diversity the Court is poised to render elusive in its decisions in this term’s affirmative action cases. For years, proponents of affirmative action have emphasized the importance of diverse experiences in our institutions. The value of diversity, they maintain, is not simply cosmetic, but rather, lies in the fact that people of different backgrounds may approach the same question with different perspectives. Taking account of these varied perspectives, proponents argue, make our institutions stronger and more effective.

And therein lies the irony. Even as the Court reflects the wealth of experience that diversity provides, it also seems likely to render these markers of experience and identity suspect in American institutions.

Melissa Murray is Frederick I. and Grace Stokes Professor of Law at NYU Law School. You can reach her by e-mail at melissa.murray@nyu.edu.

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