Where was Justice Thomas in Schuette?

April 22nd, 2014

Having now read the entire opinion, I can’t get past one question. Where the hell was Justice Thomas? How did he not write separately?┬áBy my count, Justice Thomas has written separately in every single case involving racial preferences since he joined the Court. There are parts of Justice Sotomayor’s dissent that must have made him furious. In particular Part IV.B (pp 43- 46) where Sotomayor explains why “race matters.”

As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

This must make his blood boil. You can’t read his collected opinions on affirmative action, and My Grandfather’s Son, without recognizing that he sees things very differently. Recall his dissent in Grutter, where he cites Frederick Douglas’s admonition for the white man–“Let him alone!”

I had this crazy, fleeting thought that Justice Thomas wrote something really, really harsh in response, but withdrew it. But maybe I’m totally wrong.