Thomas on Strict Scrutiny: Korematsu, Brown, Plessy, and Grutter

June 24th, 2013

Perhaps one of the few contributions the Fisher-dodge added to our constitutional law jurisprudence was to clarify what strict scrutiny meant in this case.

Justice Kennedy’s opinion closes with this interesting twist on “strict in theory, but fatal in fact.”

Strict scrutiny must not be “ ‘strict in theory, but fatal in fact,’” Adarand, supra, at 237; see also Grutter, supra, at 326. But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Bakke, 438 U. S., at 315 (opinion of Powell, J.). The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

Justice Thomas takes a different view of strict scrutiny, and offers this historiography, that I hadn’t seen before.

The Court first articulated the strict-scrutiny standard in Korematsu v. United States, 323 U. S. 214 (1944). There, we held that “[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can.” Id., at 216.1
1 The standard of “pressing public necessity” is more frequently called a “compelling governmental interest.” I use the terms interchangeably.

Then, Thomas compares Grutter to Korematsu as one of the few cases where a compelling governmental interest warrants racial discrimination.

Aside from Grutter, the Court has recognized only two instances in which a “[p]ressing public necessity” may justify racial discrimination by the government. First, in Korematsu, the Court recognized that protecting national security may satisfy this exacting standard. In that case, the Court upheld an evacuation order directed at “all persons of Japanese ancestry” on the grounds that the Nation was at war with Japan and that the order had “a definite and close rela- ionship to the prevention of espionage and sabotage.” 323 U. S., at 217–218. Second, the Court has recognized that the government has a compelling interest in remedying past discrimination for which it is responsible, but we have stressed that a government wishing to use race must provide “a ‘strong basis in evidence for its conclusion that remedial action [is] necessary.’”

Thomas explains his Grutter dissent, which makes it seem like the use of race was even more egregious than Korematsu, as there was not national security interest present.

Grutter was a radical departure from our strict-scrutiny precedents. In Grutter, the University of Michigan Law School (Law School) claimed that it had a compelling reason to discriminate based on race. The reason it advanced did not concern protecting national security or remedying its own past discrimination. Instead, the Law School argued that it needed to discriminate in admissions decisions in order to obtain the “educational benefits that flow from a diverse student body.” 539 U. S., at 317. Contrary to the very meaning of strict scrutiny, the Court deferred to the Law School’s determination that this interest was sufficiently compelling to justify racial discrimination. Id., at 325. I dissented from that part of the Court’s decision. I explained that “only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity’” sufficient to satisfy strict scrutiny.

Thomas has in the past compared affirmative action to slavery. Now he analogizes it to Japanese internment. Then he compares affirmative action to arguments advanced by segregationists in Brown.

Unfortunately for the University, the educational benefits flowing from student body diversity—assuming they
exist—hardly qualify as a compelling state interest. In-deed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950’s, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then, see Brown v. Board of Education, 347 U. S. 483 (1954), the alleged educational benefits of diversity cannot justify racial discrimination today.

Later, he analogizes Plessy and Grutter!

. The Iowa Supreme Court rejected that flimsy justification, holding that “all the youths are equal before the law, and there is no discretion vested in the board . . . or elsewhere, to interfere with or disturb that equality.” Id., at 277. “For the courts to sustain a board of school directors . . . in limiting the rights and privileges of persons by reason of their [race], would be to sanction a plain violation of the spirit of our laws not only, but would tend to perpetuate the national differences of our people and stimulate a constant strife, if not a war of races.” Id., at 276. This simple, yet fundamental, truth was lost on the Court in Plessy and Grutter

And don’t forget Harlan’s dissent in the Civil Rights Case:

Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of THOMAS, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination.

Thomas cites from the briefs, and transcripts in a companion case to Brown from Virginia:

The true victims of desegregation, the school board asserted, would be black students, who would be unable to afford private school. See id., at 31 (“[W]ith the demise of segregation, education in Virginia would receive a serious setback. Those who would suffer most would be the Negroes who, by and large, would be economically less able to afford the private school”);

He also cites briefs from Sweatt v. Painter (the other racial-preferences case from University of Texas):

2 Similar arguments were advanced unsuccessfully in other cases as well. See, e.g., Brief for Respondents in Sweatt v. Painter, O. T. 1949, No. 44, pp. 94–95 (hereinafter Brief for Respondents in Sweatt) (“[I]f the power to separate the students were terminated, . . . it would be as a bonanza to the private white schools of the State, and it would mean the migration out of the schools and the turning away from the public schools of the influence and support of a large number of children and of the parents of those children . . . who are the largest contributors to the cause of public education, and whose financial support is necessary for the continued progress of public education. . . . Should the State be required to mix the public schools, there is no question but that a very large group of students would transfer, or be moved by their parents, to private schools with a resultant deterioration of the public schools” (internal quotation marks omitted))

To Thomas, it follows that Texas has a choice consistent with strict scrutiny–shut down the University, or stop using affirmative action.

If the Court were actually applying strict scrutiny, it would require Texas either to close the University or to stop discriminating against applicants based on their race. The Court has put other schools to that choice, and there is no reason to treat the University differently.

Then, Thomas straits to strain credulity, as he continues to compare arguments advanced by UT in Fisher and in Sweatt.

It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society. See, e.g., Brief for Respondents 6 (arguing that student body diversity “prepares students to become the next generation of leaders in an increasingly diverse society”). The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks . . . It is irrelevant under the Fourteenth Amendment whether segregated or mixed schools produce better leaders. Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders. Likewise, the University’s racial discrimination cannot be justified on the ground that it will produce better leaders.


Finally, while the University admits that racial discrimination in admissions is not ideal, it asserts that it is a temporary necessity because of the enduring race consciousness of our society. See Brief for Respondents 53–54 (“Certainly all aspire for a colorblind society in which race does not matter . . . . But in Texas, as in America, ‘our highest aspirations are yet unfulfilled’”). Yet again, the University echoes the hollow justifications advanced by the segregationists.

I think this concurrence has jumped the shark. I see what Thomas is trying to do here, but it is really a stretch. He is trying to compare the motivations to use racial preferences for benign (affirmative action) and odious (segregation) goals, to show that there is no distinction.

The University’s arguments today are no more persuasive than they were 60 years ago. Nevertheless, despite rejecting identical arguments in Brown, the Court in Grutter deferred to the University’s determination that the diversity obtained by racial discrimination would yield educational benefits. There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits. See Grutter, 539 U. S., at 365–366 (opinion of THOMAS, J.) (“Contained within today’s majority opinion is the seed of a new constitutional justification for a concept I thought long and rightly rejected—racial segregation”). Educational benefits are a far cry from the truly compelling state interests that we previously required to justify use of racial classifications.

The manner in which CT makes the case is really odd, and not persuasive. And only in a footnote at the end does he actually acknowledge the different aims–diversity, and segregation–but stresses that there is no difference!

While the arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists, one obvious difference is that the segregationists argued that it was segregation that was necessary to obtain the alleged benefits, whereas the University argues that diversity is the key. Today, the segregationists’ arguments would never be given serious consideration. But see M. Plocienniczak, Pennsylvania School Experiments with ‘Segregation,’ CNN (Jan. 27, 2011), /pennsylvania.segregation/index.html?_s=PM:US (as visited June 21, 2013, and available in Clerk of Court’s case file). We should be equally hostile to the University’s repackaged version of the same arguments in support of its favored form of racial discrimination.

And not only does CT not see a difference, the so-called “benighted” version is even worse.

While I find the theory advanced by the University to justify racial discrimination facially inadequate, I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities. See post, at 3 (GINSBURG, J., dissenting) (“[G]overnment actors, including state universities, need not be blind to the lingering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality’”). But “[h]istory should teach greater humility.” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 609 (1990) (O’Connor, J., dissenting). The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

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. 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.

Wow. I think this explains the delay.