"And Justice Clarence Thomas' concurrence drove the nail in the coffin, insisting that the Constitution is and always has been colorblind, tolerating no racial distinctions even if they are designed to remediate decades of racial subordination. But look closer at Thomas' opinion, and something remarkable happens. In trying to shut the door on race-conscious affirmative action, he may have quietly left another affirmative action door wide open."
"In Thomas' concurrence, to explain why the Freedmen's Bureau Acts of 1865 and 1866 do not authorize race-conscious affirmative action programs, Thomas recasts the acts as " status-based" laws rather than race-conscious ones. The bureau, in his telling, didn't help Black people because they were Black; it helped "freedmen" and "refugees" because of their legal status after the Civil War. Freedmen were overwhelmingly Black, but that didn't matter, he argued, because the law turned on status, not race."
The Supreme Court struck down race-conscious admissions in 2023, eliminating race-based affirmative action in higher education. Chief Justice Roberts' majority opinion declared an end to race-conscious programs, while Justice Clarence Thomas insisted the Constitution tolerates no racial distinctions. Justice Thomas recasts the Freedmen's Bureau Acts as status-based laws that aided freedmen and refugees because of their legal status after the Civil War rather than their race. That framing separates race-based classifications, which trigger strict scrutiny, from status-based or race-neutral classifications, which receive more deferential rational-basis review, potentially enabling status-targeted remedial measures.
Read at Slate Magazine
Unable to calculate read time
Collection
[
|
...
]