Those criticizing Justice Clarence Thomas in recent weeks for his views on affirmative action have only reinforced one of his main points: Because affirmative action causes some people to question others’ achievements, affirmative action perpetually harms individuals who would have succeeded without it.
Justice Thomas made this critique 20 years ago in his separate opinion in Grutter v. Bollinger. The very existence of affirmative action, he said, causes some employers reviewing job applicants to wonder whether “skin color played a part in their advancement.” “The question itself,” Justice Thomas wrote, “is the stigma” because it “unfairly marks those . . . who would succeed without discrimination.”
In recent weeks, critics have done worse than simply question whether Clarence Thomas would have succeeded without affirmative action. They have outright assumed — based solely on the color of his skin — that he would not. MSNBC’s Joy Reid confidently declared a few weeks ago that affirmative action “is how Clarence Thomas got” to Yale Law School. The NAACP president recently said that affirmative action “created” and “benefited” Thomas. And letters to the editor from residents across the country have said the same thing.
But there is scant evidence that Clarence Thomas benefited from affirmative action at all. As recently noted in the Wall Street Journal, Thomas was toward the top of his seminary class when applying to College of the Holy Cross and toward the top of his undergraduate class (with honors) when applying to Yale Law School.
The ready assumption by Reid and others that Yale would have rejected Clarence Thomas but for affirmative action simply has no evidentiary support. He submitted highly competitive applications even absent affirmative-action programs.
There is plenty of evidence, however, that the negative stereotyping created by affirmative action harmed Thomas. As he recounted in his autobiography, he was repeatedly rejected when he applied for jobs at the end of law school. Prospective employers assumed — like Reid and others do today — that Thomas would not have been admitted to Yale but for his race.
Fortunately, one office looked deeper, saw the strength of his academic record, and knew Justice Thomas would be an exceptional attorney.
I am proud to work for that same office today. Justice Thomas, known across the country, is even better known in the office of the Missouri attorney general. In our office, he is famous to this day. Not just for what he later became, but also for his exceptional advocacy early in his career on behalf of the state of Missouri. Affirmative action caused other employers to negatively stereotype Clarence Thomas because of his race. They missed out.
There is in fact an irony here. In one sense, the president of the NAACP is correct that affirmative action “created” Clarence Thomas, but it came from affirmative action closing doors, not opening them.
But for the taint Clarence Thomas experienced from affirmative action, he would have received job offers from private law firms and might be a Big Law partner today. He might not have taken a job as a line attorney in Attorney General Jack Danforth’s office, where he impressed future-senator Danforth enough to earn a job as a Senate staffer, where he impressed President Reagan enough to be appointed to the EEOC, where he impressed President George H. W. Bush enough to be elevated to the judiciary.
Yet even 50 years later — after Justice Thomas has amassed a distinguished reputation for rigorous, always-scholarly opinions — he still must bear the stigma, the automatic assumption from many Americans, that his achievements are due to race, not his own merit. Those criticizing Justice Thomas in recent weeks as a beneficiary of affirmative action only prove his main point that, as he put it at his confirmation hearing, the very existence of racial preferences can be “harmful to the very individuals whom we all care so much about.”
Justice Thomas will likely never escape that stigma, but because of the decision he joined in June, others will. Sometime in the future, a bright young minority student will gain admission into law school and, decades later, find himself or herself on the Supreme Court. Because of the Supreme Court’s affirmative-action decision, nobody will question whether “skin color played a part in their advancement.” That is a benefit Justice Thomas never had. And that, on its own, will be a major achievement of this decision.
Josh Divine is the Solicitor General of Missouri and previously served as a law clerk to Justice Thomas