Two weeks ago, The New York Times reported that the Department of Justice was initiating investigations against university admissions policies that discriminate against white applicants. The DOJ quickly explained that this was a misleading report in that it was simply seeking volunteers to investigate complaints filed by a coalition of 64 Asian-American organizations against Harvard University’s affirmative-action policies.
The DOJ’s response infuriated many scholars and pundits, who alleged that the administration was seeking to create a political wedge between Asians and other people of color, or even worse, using Asian interests as a veil to conceal the administration’s appeal to white resentment, as part of its tacit engagement in white identity politics.
Predictably, conservatives responded that enforcing anti-discrimination law is the exact opposite of identity politics. Conservatism, as these pundits explained, is defined by its rejection of collective identity as a criterion for political action. Conservatism is ultimately about individualism.
Liberal scholars like Mark Lilla have recently reflected on whether progressives have become too enamored with identity politics. As recently suggested by Rod Dreher, it may be time for conservatives to do the same.
But when scholars think of conservatives and identity politics, it is usually in the form of “dog-whistling” implicit white identity politics. What many scholars ignore, however, is that conservatives have also engaged in a more explicit non-white identity politics, very similar to the liberal variety. So, the question arises, is it happening at the very top of our legal system and to the detriment of whom?
This often-overlooked conservative use of identity politics is particularly prominent in the writings of Clarence Thomas, who by most measures is the most conservative Justice on the Supreme Court. Thomas has had an especially significant influence on what is known as “the legal conservative movement,” the social movement by which conservative lawyers have sought to use the courts to advance their desired policies. Indeed, while many scholars have focused on Justice Scalia’s contributions to the legal conservative movement (through his involvement in the Federalist Society and his work in developing the theory of originalism), Thomas has arguably had more influence on the movement’s argumentative strategies in steering conservative lawyers toward a particular form of identity politics.
Chairman Thomas and the Legal Conservative Movement
Before being appointed to the Supreme Court in 1991, Clarence Thomas served as the EEOC (Equal Employment Opportunity Commission) Chairman from 1982 to 1990, taking over that position at the age of 33. In that capacity, his relationship with the Republican Party was not always a friendly one, particularly on racial matters.
For example, in a recent (and excellent) book on the legal conservative movement, Jefferson Decker recounts how when Chairman Thomas was invited to give a DOJ speech to celebrate Martin Luther King’s birthday, a topic of controversy at the time, Thomas used the opportunity to inveigh against conservatives for being insufficiently sympathetic on racial issues. In particular, Thomas lambasted the GOP for being on the wrong side of the civil rights movement and South African apartheid. If the party wanted to attract African-Americans, Thomas proclaimed, it would have to make clear it was on the side of racial equality.”
Still, he was very much in line with conservatives on Affirmative Action, which Thomas opposed because he believed racial quotas and preferences in hiring practices and schools were destructive to the African American community they were supposed to serve. “I must repeat that ‘affirmative action’ programs create a narcotic of dependency, not an ethic of responsibility and independence,” Thomas said in 1987. “They are at best an irrelevance covering up some real problems, and inevitably a stigma.”
Thomas’s direct message to the GOP, however, had an especially strong impact on Clint Bolick, who was in the DOJ audience that day and who would later become one of the most influential activists in the legal conservative movement. In Nina Easton’s profile of five leading conservatives, including Bolick, Easton explains how when Bolick first came to the EEOC in 1985, he “worshipped at the altar” of Clarence Pendleton, the conservative black chair of the U.S. Commission on Civil Rights. But once Bolick started working at the EEOC, his worship shifted to “the other Clarence,” who quickly became his mentor, eventually becoming the godfather to Bolick’s second child. As Easton explains, Thomas and Bolick bonded over one particular issue: They both “saw themselves as lone warriors against the entrenched … civil rights community” – a community that, as Bolick would later write, had become “detached from the needs of its claimed constituency.”
Thomas encouraged his mentee to serve this neglected civil right constituency through libertarian economic principles. Indeed, Thomas instructed Bolick not to focus on redressing the white victims of so-called “reverse discrimination,” but rather to work on uplifting poor African-Americans who, like Thomas’s grandfather, struggled to support themselves under onerous government regulation.
Bolick would go on to do just that, litigating various social-justice cases as part of his firm, Institute for Justice, and in many of these cases, Bolick searched specifically for African-American plaintiffs. Bolick also has written several books that, though covering a wide range of issues (such as school vouchers, immigration reform, and conservative litigation strategy), all express the same theme: Economic libertarianism is the key to guaranteeing civil rights for African-Americans and the Republican Party is therefore the true steward of African-American empowerment.
This reasoning has come to define conservative public-interest litigation. Indeed, something that few scholars have noticed is that the leading conservative movement cases in federalism, gun rights, and school vouchers have relied on minority plaintiffs. And conservative lawyers have accordingly framed their legal arguments as providing special benefits to these groups.
Through Bolick, we can see Thomas’s legacy in reshaping the meaning of legal conservatism as being not about conserving particular traditions or practices, but about uplifting traditionally disadvantaged racial groups through libertarian economic policies. This is a legacy we can see even more sharply in some of Thomas’s opinions, such as in school-choice and affirmative-action cases.
Justice Thomas and School Choice
In Zelman v. Simmons-Harris (2002), the Supreme Court upheld the constitutionality of a Cleveland K-12 voucher program that involved a substantial amount of taxpayer dollars being diverted to private religious schools. The program was challenged as a violation of the First Amendment’s Establishment Clause, which prohibits the government from promoting religion.
Bolick, along with his Institute for Justice, worked with the State of Ohio to defend the voucher program as a civil rights issue for African-American urban children.
The Supreme Court sharply split, 5-4, along ideological lines, with the conservative majority upholding the voucher program as complying with the Establishment Clause because of its neutrality between religious and non-religious schools. The liberal Justices claimed, in dissent, that the program violated the Establishment Clause because a significant percentage and total amount of tax dollars went to religious education. Justice Thomas made a point of writing a separate concurring opinion, and of all the fascinating opinions in the Zelman case, Thomas’s concurrence may be the most interesting.
What made Thomas’s concurrence so interesting is that it largely ignored the Establishment Clause and focused instead on the underlying value of the Fourteenth Amendment’s guarantee of equal protection. That is, rather than simply holding that the voucher program was permissible because it complied with the original meaning of the Establishment Clause, as one would expect a self-avowed originalist like Thomas to do, Thomas drew on the African-American struggle as the principal basis for his decision.
Indeed, Thomas began his opinion by quoting Frederick Douglass and citing the guarantee of educational equality in Brown v. Board of Education (1954). Thomas then turned to the promise of Reconstruction: “At the time of Reconstruction, blacks considered public education ‘a matter of personal liberation and a necessary function of a free society.’” And that promise, Thomas continued, remains unfulfilled: “Just as blacks supported public education during Reconstruction, many blacks and other minorities now support school choice programs because they provide the greatest educational opportunities for their children in struggling communities.” School vouchers are therefore integral to the Reconstruction promise to African-Americans.
Thomas lambasted liberal “[o]pponents of the program [who] raise formalistic concerns about the Establishment Clause but ignore the core purposes of the Fourteenth Amendment.” Under Thomas’s reasoning, liberals represent the true threat to the Fourteenth Amendment and its underlying guarantee of “a more egalitarian culture,” because liberals prioritize the niceties of the Establishment Clause over the fact that “failing urban public schools disproportionately affect minority children most in need of educational opportunity.”
Putting aside whether Justice Thomas was right or wrong, constitutionally or politically, it is important to understand how his argumentative strategy relates to Left-Right dynamics: Originalism and legal formality are rendered subordinate to the purpose of the Fourteenth Amendment, making conservatives the true egalitarians and stewards of the civil rights constituency.
Justice Thomas and Affirmative Action
We see a similar pattern of reasoning in Justice Thomas’s affirmative-action opinions. Consider just one example, Fisher v. University of Texas I (2013), a case involving a white UT applicant, Abigail Fisher, who challenged the constitutionality of the university’s affirmative-action program. The case was remanded to the lower court, and when it returned to the Supreme Court in Fisher v. University of Texas II (2016), the Court upheld the University’s program.
What is interesting for our purposes is that, just as in Zelman, Justice Thomas made a point of writing a concurring opinion in Fisher I, and again, instead of simply applying his understanding of the original meaning of the constitutional provision at issue, he explored the program’s social impact on the African-American community.
In what struck many observers as a highly inflammatory and personal opinion, Thomas ventured far outside the ordinary parameters of legal discourse and compared affirmative action to the horrors of slavery and segregation. Moreover, while recognizing that “the University’s discrimination injures white and Asian applicants who are denied admission because of their race,” Thomas seemed less interested in what the program meant for Abigail Fisher and more interested in his belief that “the injury to [the African-Americans] admitted under the University’s discriminatory admissions program is even more harmful.”
This of course recalls Thomas’s instruction to Bolick, nearly 30 years earlier – conservatives should not concern themselves with the victims of affirmative action and should instead focus on providing the civil rights constituency with a path to empowerment.
The Future of Conservatism and Identity Politics
The problem with identity politics is that it leads to unprincipled reasoning. Conservatives continue to spend billions on school-voucher programs, despite limited evidence of their efficacy, but at the same time conservatives largely ignore school-choice issues that affect other constituencies, such as homeschooling. Likewise, conservatives frame affirmative-action disputes in terms of minority interests, but they ignore how non-Jewish whites have become the most underrepresented demographic in our elite institutions. The result is that while conservatives proclaim they are too principled to play identity politics, the truth is that they just aren’t as adept as liberals at playing the identity game. Losing doesn’t make you principled.
Rod Dreher has confessed to being “pessimistic [about the possibility] that identity politics will go away.” One reason why we should all be pessimistic is that identity has become so deeply ingrained in the way that both liberals and conservatives do politics. The crisis of our generation, made all the more painful by the recent tragedy in Charlottesville, is figuring out how to move forward as a nation, when we are all, conservatives and liberals alike, stuck in the identity quagmire, a rut that seems likely to deepen as the nation’s already unprecedented diversity compounds and ramifies.
Jesse Merriam is an assistant professor of public law at Loyola University Maryland. He is currently writing a book on the legal conservative movement.