One Man's Opinion -- Stanley Fish (almost) defends Clarence Thomas

Late in his dissent to the majority opinion upholding the affirmative action policy at the University of Michigan's law school, Justice Clarence Thomas rehearses and rejects the familiar conservative argument that "in the absence of racial discrimination in admissions there would be a true meritocracy." There are, he points out, numerous exceptions to the merit standard, including the exception given to children of alumni who are admitted, as George W. Bush was by Yale, as "legacies." Justice Thomas calls this exception "unseemly," and for a moment it seems that he will join those on the liberal side who point to the illogic of allowing one exception based on identity and birth and striking down another; either both should be permitted, they argue, or neither should be.

But Justice Thomas moves quickly to close the door he himself has opened. Legacy preferences and "many other kinds of arbitrary admissions procedures" are not, he says, prohibited by the 14th Amendment to the Constitution, which prevents states from denying citizens "equal protection of the laws." But classifications "made on the basis of race" are. He may privately believe that legacy exceptions are unwise and unfair — as the adjectives "unseemly" and "arbitrary" indicate he does — but it is not his role as a Supreme Court justice, he declares, to "impose my view of higher education admissions on the nation."

I focus on this short passage in his 31-page dissent because it gives the lie to those who read the opinion as a personal expression of anger at having been the beneficiary of a policy that retroactively casts a shadow over his achievements. In fact the opinion is a repudiation of the personal in favor of the principles of justice as Justice Thomas understands them. He asks, what does the equal protection clause forbid? The answer he finds is that the clause forbids discrimination on the basis of race, whether that discrimination is benign or malign in intention.

Even if the educational benefits of affirmative action could be demonstrated, it would be the wrong remedy simply because it is unconstitutional: Justice Thomas approvingly cites Justice William O. Douglas's statement — from his dissent in another case — that "the equal protection clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized."

This is clear and unequivocal and places Justice Thomas squarely in a philosophical tradition that begins with Kant's insistence that questions of justice turn only on abstract considerations of what is right rather than on the calculation of (someone's) preferred outcomes. What then has led some commentators to miss this central part of his argument and see in it only special pleading driven by autobiography?

The answer is that Justice Thomas has a second argument that is elaborated at length and with a vehemence that takes on a life of its own. Immediately after declaring that "beneficial and burdensome racial classifications are equally valid," he questions whether the racial classification practiced by the University of Michigan Law School is in fact beneficial: "I must contest the notion that the law school's discrimination benefits those admitted as a result of it."

This contestation takes up several pages, and it is in these pages and in an earlier aside that he gives voice to sentiments that hint at a personal, deeply felt distress. Recent studies, he claims, reveal the many adverse effects of racial balancing: students admitted under affirmative action policies underperform; unprepared students are thrown into a "cauldron of competition" and are likely to experience failure and humiliation; successful students, including blacks who would have been admitted without affirmative action, are "tarred as undeserving"; heterogeneity (his word for diversity) actually impairs learning among black students who would have been better off attending a historically black college.

It is because these points are made with such force and some anger that it is easy to see them as Justice Thomas's main points. But in fact he makes this foray into what he derides as "social science evidence" largely to undermine the one argument he sees the majority as having — the argument of social benefits. Not only, he implies, is their position without any support in the Constitution, it is not even supported by the kind of evidence they cite, for they selectively ignore the growing number of studies that come to conclusions they would find embarrassing.

Justice Thomas is not saying his social science is better than theirs — although he obviously thinks that it is, just as he obviously thinks that legacy preferences are unseemly. He is saying social science evidence is not the way to go, because the next survey may well overturn all the assumptions we now rely on. Better to stick with what the Constitution actually says and let the empirical facts fall where they may.

In Justice Thomas's view, the majority opinion is not a constitutional argument at all, but one too much in tune with the times and one that is conceptually incoherent even on its own terms. If, as Justice Sandra Day O'Connor predicts, in 25 years the interests cited by the law school will be found insufficiently compelling to pass constitutional muster, then they cannot pass constitutional muster today, for "the Constitution means the same thing today as it will in 300 months." If it doesn't, Justice Thomas would say, what happens to the idea of law?

I do not offer this analysis of Justice Thomas's arguments because I agree with them or with the conclusions they lead him to. (In fact, I do not.) I merely want to insist that arguments are what he is trafficking in, and that while his affinity for those arguments may have its source in his biography, that (sociological) fact should be irrelevant to our assessment of them.

A proper assessment might begin by challenging the assumption that neutral principles, abstracted from history, are capable all by themselves of deciding issues that arise only in historical circumstances.

The equal protection clause, after all, did not arise out of a desire to outlaw discrimination per se — discrimination with a capital D, discrimination in the abstract — but out of a desire to outlaw a particular form of discrimination. No one really favors the principle of diversity as such. Instead, people support some expansion of the idea in a particular direction for a particular constituency. By the same reasoning, no one really favors the end of discrimination — which would also be the end of judgment, law and moral outrage — but many Americans advocate the end of a particular kind of discrimination that, for historical reasons, now seems intolerable and insupportable.

Indeed, everything about the law is particular: the wrongs, the remedies, the moment at which they intersect in an effort to make things better. At another moment, perhaps the moment Justice O'Connor looks forward to 25 years from now, everything will still be particular, but differently so, and other remedies (or no remedy at all) will be what is needed. Although Justice O'Connor, like her colleagues, speaks, and is expected to speak, in the timeless language of principle, she is in fact alert, as her deference to the briefs from industry and the military shows, to the real-world consequences of what she decides.

Justice Thomas is not the only one in search of timeless tools to deal with the untidiness of the situations time throws up. It is the law's claim precisely to base itself in such tools. But I believe this search has failed, and therefore we will always be engaging in the ad hoc, pragmatic reasoning of which Justice Thomas accuses the majority.

Accordingly, I find the nice political dance performed by Justice O'Connor — the splitting of the political middle so that no one is either completely happy or too much in despair — satisfying and to my taste. It does the job of the moment, which is exactly why Justice Thomas rejects it and in his terms (which are not mine), he is right to do so.

Stanley Fish, author of "The Trouble With Principle," is dean of the College of Arts and Sciences at the University of Illinois at Chicago.

How, oh how, could Justice Thomas come out for a position that does not favor his race?

Easy. As certain people were fond of saying only a few years ago, "no man is above the law, but no man is beneath it either."

So either the law is colorblind, or it is not. When special favor is conferred upon the chosen group, they shall forever be regarded as less competent and less disciplined. But members of this group who have not been dispensed special favor, soon develop strategies to improve their chances, and after going through the fire and subsequent tempering, are forged into a superior instrument.

Which one do you want representing you in a court of law? Or issuing a verdict from the bench?

I read this last night, and I was impressed by it. While disagreeing with Justice Thomas, he fairly represents Justice Thomas' constitutional argument.

Which is a relief, after reading so many commentaries such as the one written by Maureen Dowd, which start with the racist premise that Justice Thomas is not capable of advanced argument which must in turn be addressed, and then proceed to psychologizing personal attacks.

Justice Thomas is not the only one in search of timeless tools to deal with the untidiness of the situations time throws up. It is the law's claim precisely to base itself in such tools. But I believe this search has failed, and therefore we will always be engaging in the ad hoc, pragmatic reasoning of which Justice Thomas accuses the majority.

Then, by his own admission, Mr. Fish would have no legs to stand on with which to oppose Naziism, Communism, Islamic fundamentalism, ad nauseum, because in his worldview, concepts of equality under law must be bent and broken to the will of whoever happens to be in power at the time. Certainly a foolish opinion for him to hold, but then again since he is Dean of a college, I would expect nothing less.

Fish is a relativist. He is a strong believer in the idea that there are no abstract or universal principles and therefore that ethics are based on the consensus of groups of people or communities. He has the liberal illusion that he knows what are the benign principles and what are the destructive ones.

This is a basically postmodern approach, best known by the work of Richard Rorty. What it says, at bottom, is that liberals know best, so they should make the rules.

I know Stanley Fish pretty well. He's an unusually intelligent and basically decent guy; but he has the fatal character flaw of all liberals--the illusion that you can do better by ignoring the facts and making your own rules, because you know what's best for everyone.

Indeed, everything about the law is particular: the wrongs, the remedies, the moment at which they intersect in an effort to make things better.

It is your message that falls short of understanding. It is your philosophy that will lead us away from peace and into chaos. Better for whom? – a preferred group. It is only when we combine the urgent demands of the particular with the time tested universal good that we will flourish as individuals and as a civilization. Justice is as real as God.

Animals without the power of reason respond to a particular stimulus. If we are one civilized people, one United States of America, and created equal then how can we be treated with such prejudice in college admissions with the blessing of the authority of the Supreme Court. Yes, we experience wrongs and make remedies for wrongs, but the universal principal of justice still remains a tool for civilized people to work out differences. We should not let slip those truths that bind us together.

If you still insist on the supreme importance of the particular then consider this; the Supreme Court sets precedent for all lower courts. The precedent is a guiding principal for all future decisions. It takes on the nature of a universal principal. Is this not a rejection of the emphasis of the particular at the expense of the universal. The concept of the universal is firmly established in the legal system .

Once more around the block: If you think the particular should be magnified above all else, then the court should address a particular applicant who is more qualified than another particular applicant. How inconsistent of you to consider the general notion of race at the expense of the particular applicant.

By now, it is clear that you are not qualified to assess the situation. But if it makes you feel “better” go ahead and drop the name Kant, and use some more twenty-five cent words. You may even go on pigeon holing Clarence Thomas if it makes you feel “better.” But know this: you are against my children and their pursuit of happiness. Have a blessed Fourth - of - July.

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