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.