One of the most significant moments in American history occurred during a confrontation between Justice Clarence Thomas and Justice Ketanji Brown Jackson, as they openly expressed their dislike for each other’s opinions on a major affirmative-action decision in the current term. However, this was not simply a one-on-one battle. Another notable Black voice reverberated throughout the Supreme Court that day: Thurgood Marshall, the only other Black justice in the Court’s history. Marshall’s arguments for the constitutionality of affirmative action, which he made almost 50 years ago, laid the groundwork for all subsequent legal debates on the topic. As a journalist with over five decades of experience, I have had the privilege of speaking with both Marshall and Thomas about their philosophies of law and their views on addressing racial inequality. My biography on Thurgood Marshall, titled “Thurgood Marshall: American Revolutionary,” is now celebrating its 25th year. I can still hear Marshall’s voice echoed in the dissenting opinions of Justice Jackson and Justice Sonia Sotomayor in this summer’s affirmative-action decision. Jackson and Sotomayor based their opinions on Marshall’s position that affirmative action is a necessary component for fostering a successful and racially diverse society. Marshall argued that preferences for minorities were legally permissible due to the historical disadvantages faced by Black individuals, as the Constitution had previously granted preferences to the white majority while depriving enslaved Black people of their legal rights. Unfortunately, Jackson and Sotomayor were on the losing side of the 6-3 decision, with Thomas leading the majority opinion along with the five white conservative justices. Thomas’s perspective differs from Marshall’s, as he believes that affirmative action was never necessary to rectify past racial injustices. Jackson’s rejection of Thomas’s argument visibly perturbed the senior Black justice, leading him to publicly read his concurring opinion for the first time in his 30-year career on the bench. In his opinion, Thomas directly confronts Jackson and criticizes her views on racial inequality, asserting that her perception of a fundamentally racist society is incomprehensible to him. Thomas aims to establish racial solidarity among Black justices and expects Jackson to join him in opposing affirmative action, as he believes it perpetuates negative stereotypes and undermines the equal intellect and discipline of Black individuals. His argument centers on the notion that White individuals only need to follow the law and ensure equal rights without considering the losses suffered by Black individuals for generations in education, jobs, social capital, and wealth accumulation. Thomas draws on the Black nationalist tradition, inspired by figures like Booker T. Washington, Marcus Garvey, and Malcolm X, who believed in separate parallel development to support Black progress. However, Thomas differs from most Black nationalists by absolving White individuals of responsibility for the legacy of slavery and ongoing bias. He accuses Jackson of attempting to label all Black people as victims based on her citation of statistical disparities between Blacks and whites, while Jackson argues that Thomas fails to acknowledge the historical and present-day realities of racial inequality. She contends that race-consciousness is a necessary factor in addressing applicants’ unique life experiences and that considering race in college admissions has universal benefits for promoting equality. Sotomayor also disagrees with Thomas’s argument, emphasizing that ignoring race will not lead to a society of equal opportunities. She stresses the importance of acknowledging inequality in order to achieve true equality, drawing parallels to historical moments such as the 1860s and the 1954 Supreme Court decision in Brown v. Board of Education. The justices’ opinions reflect years of ongoing debates on affirmative action and the complexities of addressing racial inequality in American society.
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