Still Waiting For An Originalist Defense of Affirmative Action

Atypically for something written by John Yoo, I actually agree with much of the first part of his Clarence Thomas apologia. Thomas is the most principled conservative on the Court, his contribution (whether or not one agrees with the conclusions) , and claims that Thomas was Scalia’s sock puppet are both plainly wrong and may even in some cases by motivated by racist condescension.

The second half of the editorial, though, predictably runs off the rails. Yoo — who himself has produced some of the most farcical arguments put forward under the “originalist” banner — spends considerable time on Thomas’s belief that affirmative action is almost always unconstitutional. Unfortunately for Yoo’s claims about Thomas’s jurisprudence, this argument is plainly inconsistent with the theories of constitutional interpretation that Thomas claims to apply. I thought that Yoo might, unlike Thomas and Scalia, would actually try to offer an originalist defense of this position, but he doesn’t. Rather, he ignores the text (let alone the history) of the 14th Amendment entirely, and simply recites Thomas’s policy arguments against affirmative action. Whether or not one finds these persuasive, they are not arguments that the equal protection clause was originally understood as prohibiting all racial classifications. Similarly, Yoo’s defense of Thomas’s position on the constitutionality of school vouchers ignores the First Amendment and instead recites the banal proposition that education “means emancipation.” Indeed it does, but this claim is neither here nor there in terms of whether a program that by design will direct taxpayer funds almost exclusively to religious schools is consistent with the First Amendment. (And, even from a pragmatic perspective, the emancipatory potential of a program that allows less than 5% of students to switch schools is pretty negligible.)

In addition, the Thomas case presents a deeper irony. For obvious reasons, Yoo fails to mention that Thomas probably would not have gotten into Yale Law School and unquestionably would not been nominated to the Supreme Court had he not been an African-American. And yet — admittedly with results that are less than ideologically congenial from my perspective — affirmative action worked; taking Thomas’s background into account in fact identified a perfectly able law student and Supreme Court justice. Should a discussion of Thomas’s opposition to affirmative action deal with this?