The Other Black Justice on the Supreme Court

Thirty years after his death, Thurgood Marshall’s ideas still resonate.

A standout moment in American history occurred in the head-to-head clash between Justice Clarence Thomas and Justice Ketanji Brown Jackson as they each expressed disdain for the other’s opinion in this term’s major affirmative-action decision.

But it was not a one-on-one contest.

There was another Black voice echoing throughout the Supreme Court that day, the only other Black justice in the history of the Court: Thurgood Marshall.

His opinions are still alive, three decades after his death. It was his argument for affirmative action’s constitutionality nearly 50 years ago that set the foundation for all subsequent legal debate on the issue.

In my five decades as a journalist, I’ve had the privilege of speaking with both Marshall and Thomas about their philosophies of law and how the law should address racial inequality, and a biography I wrote, Thurgood Marshall: American Revolutionary, is now celebrating its 25th year. I hear Marshall’s voice resounding in the two dissenting opinions in this summer’s affirmative-action decision, one from Jackson and the other from the only Latina Supreme Court justice, Sonia Sotomayor.

Jackson and Sotomayor built their opinions on Marshall’s position—that affirmative action is a compelling national interest, necessary to fostering a successful, racially diverse society. Marshall argued that racial preferences for minorities were legally permissible on the grounds that the Constitution previously granted preferences to the white majority while leaving enslaved Black people “deprived of all legal rights.”

Sotomayor and Jackson lost, 6–3; Thomas was joined by the five white conservatives on the Court. Among justices of color, however, Thomas was the lone standout, with both Sotomayor and Jackson against him—and Marshall, too, if his abiding presence could have voted.

When considering the first affirmative-action case, Regents of University of California v. Bakke, in 1978, Marshall wrote a memo to his all-white colleagues telling them to stop debating whether instances of Black achievement meant that Black people had “arrived.” That argument was a waste of time, he said, citing a U.S. News & World Report list of 83 leading Americans. He pointed out that “not one Negro, even as a would-be runner-up,” was on the list.

When I once asked him about the idea that affirmative action should help all disadvantaged students, including poor white people, Marshall told me, “There’s not a white man in this country who can say, ‘I never benefited by being white.’”

Marshall failed to get his fellow justices to allow 16 seats at the Davis School of Medicine to be reserved for academically qualified minority students. The white majority ruled that doing so would amount to a racial quota and was unconstitutional. But Marshall got them to agree that it was legal to consider the race of an applicant in an effort to create a more diverse campus.

In all subsequent challenges to affirmative action, the high court had to contend with Marshall’s premise. The justices had to face the fact that the Constitution that had previously allowed for slavery also made room, under the Fourteenth Amendment’s equal-protection clause, for legal steps to remedy the original harm.

His argument was persuasive enough to hold until this year, when Thomas’s view—that affirmative action was never needed to repair past racial wrongs—won out.

Jackson’s rejection of Thomas’s argument against affirmative action noticeably got under the senior Black justice’s skin. The depth of emotion involved for Thomas was evident in his decision to read his concurring opinion aloud in front of his fellow justices for the first time in his three decades on the bench. “Treating anyone differently based on skin color is oppression,” Thomas said. In his opinion, he went on to confront Jackson in personal terms, writing, “As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today.” He later added, “Justice Jackson uses her broad observations about statistical relationship between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me.”

As Melissa Murray, an NYU law professor, put it to The New York Times, Thomas sounded like “a Black elder chiding and chastising an errant Young Turk who … failed to show sufficient deference. It’s almost as if he expects racial solidarity” from Jackson.

Thomas seems to have an emotional investment in turning Jackson away from Marshall. He has long felt that affirmative action stigmatized Black people, in schools and in professional life. He feels that because of affirmative action, white people view their Black peers as less qualified and even less intelligent.

“If I ever … [took a race-related job], my career would be irreparably ruined,” Thomas told me in 1980, ironically before taking a job as the leader of the Equal Employment Opportunity Commission. “The monkey would be on my back to prove that I didn’t have the job because I’m black. People meeting me for the first time would automatically dismiss my thinking as second-rate.”

He saw white condescension as a lifelong insult to all Black people. And he wanted Jackson to join him in condemning affirmative action as part of that insult, because in his mind, it inherently denied Black people’s equal intellect and discipline.

The sharpest point of Thomas’s argument was that white people’s only obligation to Black people was to follow “the law”—as he sees it—and ensure that the constitutional protection of equal rights is now in place. He never spoke to losses, compounded over generations, in education, jobs, social capital, and opportunities to grow family wealth. He dedicated much of his 58-page concurrence to dismissing such factors as having no basis in law.

In an interview for The Atlantic years ago, Thomas told me a story from his childhood about a blackjack game in which one player was discovered to be a cheater. At that point, figuring out who had been cheated and who had legitimately lost their money was beyond reason, he said. The only way for the game to go on was for everyone to agree to stop cheating—that would make it a level playing field.

Thomas’s argument is rooted in the defiant Black-nationalist tradition of Booker T. Washington, Marcus Garvey, and Malcolm X, his heroes. In his famous “Atlanta Compromise” speech, Washington backed the idea of Blacks and whites remaining socially segregated, “separate as the fingers,” so they could continue to do business. When a white liberal asked Malcolm X what she could do to help Black progress, he famously said, “Nothing.”

Thomas similarly argued that Black people could demonstrate their abilities only if white people got out of their way, and stopped pursuing programs such as affirmative action. However, the big difference between Thomas and most Black nationalists is that he assures whites that they have no responsibility for the history of slavery and continued bias.

Thomas directly expressed disdain for Jackson, condemning her citation of statistically different outcomes for Blacks and whites as an attempt “to label all blacks as victims.” She would put Black people in a “seemingly perpetual inferior caste,” he argued.

Jackson did not buy it. She responded in a footnote to her dissent that it is Thomas, not she, who “demonstrates an obsession with race consciousness that far outstrips my [argument] … that race can be a factor that affects applicants’ unique life experiences.”

In keeping with Justice Marshall’s thinking, she wrote that Thomas was essentially locked in a mirrored hall of racial distortion. She said he was asking Americans to look away from “the elephant in the room—the race-linked disparities that continue to impede achievement of our Nation’s full potential.” Jackson argued that allowing colleges to consider the race of applicants has “universal benefits” in helping promote equality.

As for Thomas’s claim that affirmative action resulted in all Black people being labeled as victims, Jackson said that such logic failed because it “blinks both history and reality in ways too numerous to count … Our country has never been colorblind.”

Justice Sotomayor joined Jackson by saying from the bench that Thomas was making a wrongheaded argument. “Ignoring race will not equalize a society that is racially unequal,” she said. “What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgement of inequality.”

That fits with years of arguments by Marshall. The late justice dissented from the part of the majority opinion in Bakke that refused to embrace a more expansive view of affirmative action, which would have allowed for quotas: “It must be remembered that during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now when the state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.” Still, Marshall’s logic allowed for consideration of race—until this year’s decision.

Long before he came to the Court, Thomas argued that equality was not to be confused with integration.

In a 1987 article in the Howard Law Journal, Thomas argued that in the unanimous 1954 Brown v. Board of Education decision outlawing school segregation, the Court had erred by ruling on the basis of sociological claims that classroom segregation created, as the decision put it, a “feeling of inferiority” among Black students and therefore was “inherently unequal.” Instead, he said, Brown should have turned to the “first principles of liberty and equality,” as exemplified in Justice John Marshall Harlan’s dissent in the 1896 decision Plessy v. Ferguson. The focus on school integration, he said, had led the nation into decades of “petty squabbling over ‘quotas,’ ‘affirmative action,’ and race-conscious remedies for social ills.”

This was straight out of the Black-nationalist playbook. Alexander Crummell, a Black nationalist, wrote in 1875 that white people will “be forced to forget all the facts and theories of race when they behold our thorough equality with them, in all lines of activities and attainment, of culture and moral grandeur.” Similarly, the leader of the Nation of Islam, Elijah Muhammad, once criticized Marshall’s legal appeals for racial integration as demeaning to Black people.

When Marshall won the landmark Brown decision as a lawyer before the Court, Muhammad condemned him for “seeking [a] closer relationship between the slaves and their master [which will lead to] total destruction of the Negroes by the wise, old slave master’s children … Thurgood Marshall does not care for the recognition of his kind or for the Black Nation. He is in love with the white race. He hates the preaching of the uplifting of the Black Nation unless it is approved by the white race.”

Using the same logic as the Nation of Islam’s leader, the future Justice Thomas contended that the NAACP, with Marshall as its advocate, should have asked the Court for quality education for all children, not for integration.

I once raised Thomas’s argument to Justice Marshall himself. I had just finished a Washington Post Magazine profile of Marshall and made a return visit to his chambers at the Court. This was 1990, and big-city schools, more than 30 years after Brown, remained essentially segregated—bastions of poor Black students after white flight to suburban schools.

Nevertheless, Marshall told me that Thomas was wrong.

Marshall said he had argued for racial integration of schools to force white school boards, white mayors, and white governors to provide equally for all schools—because white children could be in all schools. He was not working for a picture of smiling Black and white children in the classroom, he said. But in his view, having Black children and white children in the same classroom was the only way to ensure that they had the same educational opportunities.

The two Black justices never debated the issue face-to-face. But Thomas never stopped wanting to win against the man he replaced on the Court. In this most recent battle over the issue, he especially, it seemed to me, wanted to win Jackson’s support for his side of the debate to show the world, and especially the world of Black people, that he was right. He appears to long for affirmation from Black people, who he feels have been separated from him by white liberal critics. He once told me that when he met with a Black student group and outlined his conservative positions to lift up Black America, the meeting ended with a young Black man telling him, “Man, they lied on you.” Thomas told me that story to show that when Black people see him for themselves, they give him the love and racial solidarity he so desperately seeks.

Not just Justice Jackson, but close to half of Black America agrees with Marshall’s view that affirmative action’s consideration of race was a legitimate tool for university admissions. According to a Pew Research Center poll done this year, 47 percent of Black people supported the idea, 29 percent did not, and 24 percent were undecided.

Recently, Keith Ellison, Minnesota’s attorney general, a Black man, suggested that Thomas was comparable to a character in the 2012 movie Django Unchained. Samuel L. Jackson plays a house slave who remains loyal to an enslaver despite witnessing his brutal cruelty against Black people. “Clarence Thomas has decided that his best personal interest is siding with the powerful … regardless of who they are going to hurt,” Ellison said. Similarly, when the Georgia Senate voted last year to build a monument to Thomas, the state’s native son, the measure was opposed by Black state senators. “It’s not that we have a problem that he is a conservative or a Republican,” said State Senator Nikki Merritt, who is Black. “We think he’s a hypocrite and a traitor. It seems like white America keeps wanting to promote Justice Thomas, but we see more evidence where time and time again he subverts the struggles of Black Americans.”

Thomas, who set out to defeat Marshall, has not succeeded. The power of Marshall’s voice on the current Court, in the form of Jackson’s and Sotomayor’s dissent, showed that Thomas’s views did not carry the day with Black Americans.

Though Thomas spoke from the bench, it is Marshall’s voice that still resonates.