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Clarence Thomas has spent his professional life trying to return American law to the Declaration of Independence’s founding promise that individuals should be judged as individuals rather than as members of racial, gender, or ethnic groups. It seems that his peers on the high court have been listening.
Thomas’ belief in individual rights precedes his time on the court. For example, in a 1985 law review article, Thomas discussed his daily responsibilities of enforcing the nation’s civil rights laws as chairman of the EEOC. He wrote: “I intend to take EEO enforcement back to where it started by defending the rights of individuals who are hurt by discriminatory practices. … Those who insist on arguing that the principle of equal opportunity, the cornerstone of civil rights, means preferences for certain groups have relinquished their roles as moral and ethical leaders in this area.”
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Justice Thomas has reiterated that American law protects individual rather than groups rights throughout his three-and-a-half decades on the nation’s highest court. In 1995’s Missouri v. Jenkins, for instance, Thomas became the first Supreme Court justice to directly criticize Brown v. Board of Education (1954). Although he called state-mandated segregation “despicable,” he said that the Court was wrong in 1954 to rely on disputable social science evidence to declare segregation unconstitutional rather than invoking the “constitutional principle” that “the government must treat citizens as individuals, and not as members of racial, ethnic or religious groups.”
Justice Thomas has made similar pronouncements in many other judicial opinions. His concurring opinion in 2007’s Parents Involved in Community Schools v. Seattle School District No. 1 is perhaps the strongest articulation of his conception of equality: “The dissent attempts to marginalize the notion of a colorblind Constitution by consigning it to me and Members of today’s plurality. … But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan’s view in Plessy: ‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’”
More recently, Justice Thomas wrote in a concurring opinion in the Supreme Court’s 2023 decisions holding that colleges and universities cannot consider race in admissions decisions that “While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.”
Last week’s Supreme Court decision in Ames v. Ohio Department of Youth Services signals that proponents of diversity, equity, and inclusion programs should stop pretending that they are complying with the law. After all, one of the most liberal members of the Court, Justice Ketanji Brown Jackson, wrote in an opinion for a unanimous Court that the “background circumstances” rule imposed by several lower courts of appeal requiring members of a majority group to satisfy a heightened evidentiary standard to prevail on a Title VII discrimination claim is inconsistent with the text of Title VII and the Supreme Court’s anti-discrimination precedents.
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Justice Jackson’s opinion for the Court reversing the lower courts might as well have been penned by Justice Thomas himself. Justice Jackson quoted the text of Title VII that makes it illegal to take an adverse employment action against “any individual.” She further quoted a 2020 Supreme Court decision, Bostock v. Clayton County, that held that the “law’s focus on individuals rather than groups [is] anything but academic.” She added: “By establishing the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”
Justice Thomas joined Justice Jackson’s opinion for the Court “in full.” But he also issued a concurring opinion in which he suggested that the “background circumstances” rule is not only inconsistent with the statutory text of Title VII but is “plainly at odds with the Constitution’s guarantee of equal protection.” Most important for present purposes, Thomas made clear that if proponents of DEI are hoping that the Ames decision has nothing to do with their DEI programs, they are sorely mistaken. “American employers have long been ‘obsessed’ with ‘diversity, equity, and inclusion’ initiatives and affirmative action plans,” he wrote. “Initiatives of this kind have often led to overt discrimination against those perceived to be in the majority.”
When Justice Antonin Scalia died in 2016, Court watchers openly speculated about who would replace him as the intellectual leader of the conservative legal movement. Clarence Thomas has unquestionably filled that role. After all, in Ames even Justice Thomas’s liberal colleagues on the nation’s highest court conceded that American law protects individual rather than group rights.
SCOTT DOUGLAS GERBER
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