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In two decisions this week, Justice Clarence Thomas has issued concurrences that he would go even further than the Supreme Court's most conservative members and abolish any government action that takes into account a person's race, including (and especially) programs meant to redress racism. Just how far is he willing to follow that argument?
On Monday, in Fisher vs. University of Texas, while the Court's 7-1 majority (including Thomas) upheld the aims of the school's affirmative action program, it sent the case back to the Fifth Circuit so that the program itself can be judged under a "strict scrutiny" standard "to prove its admissions program is narrowly tailored to obtain the educational benefits of diversity." In his concurrence, however, Thomas wrote that he would have overturned precedent and struck down the admissions program altogether because, "I think the lesson of history is clear enough: Racial discrimination is never benign."
On Tuesday, in Shelby County vs. Holder, the narrower 5-4 majority, including Thomas again, struck down the section of the Voting Rights Act that determined which jurisdictions must pre-clear their election laws with the federal government. Thomas again went further than the rest of the majority: he would have ended pre-clearance altogether because, aside from affirmative action programs like at the University of Texas, there is so little racial discrimination. "Today, our Nation has changed … circumstances in the covered jurisdictions can no longer be characterized as 'exceptional' or 'unique.'"