Law and Religion in Justice Thomas’s Fisher Concurrence

As Supreme Court followers will already know, the Court issued decisions in several cases today, including an employment discrimination case, a case about the reach of the Necessary and Proper Clause (take note, my old students!), and, of course, a case dealing with affirmative action in public universities.

There isn’t much involving law and religion in any of these cases. But not nothing either. I am still digesting Fisher v. University of Texas, but the upshot seems to be a clarification of sorts by the Court that, in applying a strict scrutiny standard in this context, while deference is due to a university’s belief in the importance of “the educational benefits flowing from student body diversity,” deference is not due to the manner in which the university attempts to achieve the asserted interest in diversity (where narrow tailoring of the means to the end is necessary). Good faith efforts by the university to achieve narrow tailoring are not sufficient to satisfy the narrow tailoring element of strict scrutiny. Justice Kennedy, writing for the Court, offered this: “Strict scrutiny must not be ‘strict in theory but fatal in fact.’….But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.” The case was vacated and remanded to the Fifth Circuit for reconsideration in light of the Court’s clarification of the applicable standard.

In a sizable and strongly worded concurrence, Justice Thomas agreed that the Fifth Circuit did not apply strict scrutiny but also argued that the Court should have overruled Grutter v. Bollinger, where the Court offered its fullest statement about educational diversity. Justice Thomas’s concurrence is framed in large part as a series of comparisons between arguments made by segregationists and arguments made by proponents of what he calls “race discrimination” in admissions, among which is the following:

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U. S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually. . . . [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good—a positive good”); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115–116 (D. Faust ed. 1981) (“Slavery, as it is said in an eloquent article published in a Southern periodical work . . . ‘has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth’”); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 (“They are elevated from the condition in which God first created them, by being made our slaves”) . . . .

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. “‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” See Metro Broadcasting, 497 U. S., at 610 (O’Connor, J., dissenting). It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications, regardless of whether the government has benevolent motives. See, e.g., Johnson, 543 U. S., at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand, 515 U. S., at 227 (“[A]ll racial classifications, imposed by whatever federal, state,or local governmental actor, must be analyzed by a reviewing court under strict scrutiny”); J. A. Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”). The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.

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