Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

Ivy-Educated Thomas and Sotomayor Divide on Affirmative Action

Oct. 29, 2022, 12:12 PM

Justices Sonia Sotomayor and Clarence Thomas overcame humble beginnings and racial discrimination before earning elite educations, but they bring very different views about race-conscious college admissions to the Supreme Court as it weighs affirmative action challenges.

Sotomayor, 68, a liberal and the court’s first Latina, has called herself the “perfect affirmative action baby.” Thomas, 74, a conservative and the court’s second Black justice, considers it stigmatizing.

Thomas “believes that everyone is capable of pulling themselves up by their bootstraps,” Sotomayor said at a recent Roosevelt University event, adding “I believe not everyone can reach their bootstraps.”

The two justices’ common paths and opposing perspectives formed over the full history of affirmative action in education are a backdrop to the Oct. 31 arguments over challenges to race-conscious admissions practices at Harvard and the University of North Carolina. The cases give Thomas and his fellow conservatives a chance to undo 40 years of affirmative action precedents.

“Based on their prior jurisprudence, the two will have very different perspectives on the issues raised by the affirmative action cases,” said Carl Tobias, a University of Richmond law professor.

Two Viewpoints

Thomas and Sotomayor both attended Yale Law School during the early years of its affirmative action program, but they don’t have the same perspective on how the policy impacted them. Thomas was in the Yale Law class of 1974, while Sotomayor was five years later.

Thomas, who attended seminaries in the South and The College of the Holy Cross in Massachusetts before enrolling at Yale, has said he believes minority students should be able to prove their capabilities without the cloud of racial preference. Affirmative action diminished his achievements at the Ivy League law school, Thomas wrote in his 2007 memoir, “My Grandfather’s Son.”

“As much as it stung to be told that I’d done well in the seminary despite my race, it was far worse to feel that I was now at Yale because of it,” Thomas wrote.

Sotomayor, who grew up in South Bronx public housing before attending Princeton and Yale Law, came to different conclusions. She has said she believes that without affirmative action, colleges would overlook capable minority applicants with limited opportunities like her.

“I had no need to apologize that the look-wider, search-more affirmative action that Princeton and Yale practiced had opened doors for me,” Sotomayor wrote in her 2013 memoir, “My Beloved World.”

How Thomas and Sotomayor came to see affirmative action and the ability of disadvantaged people of color to beat the odds may have been shaped by the fact that “they come from widely different geographic circumstances” and families, said Melissa Murray, a New York University constitutional law professor and former Sotomayor clerk.

The worldviews of judges of color such as Thomas and Sotomayor are “absolutely connected to how they’ve been socialized in the households and geographic regions where they grew up,” said Taneisha Means, a Vassar College political science professor who studies diversity in the judiciary and judicial decision-making.

Regional Racism

Thomas grew up in rural Georgia molded by racial discrimination in the Jim Crow South, Black self-determinism, and the self-reliance ideology of his grandfather, said Corey Robin, a Brooklyn College political science professor and Thomas biographer.

Thomas excelled in predominantly White Southern schools growing up, but in heading north for college he faced racism that differed from Jim Crow. “He confronted the benign face of White racism, which was extraordinarily paternalistic,” Robin said.

Thomas felt he’d been tricked into being exploited by northern White people using affirmative action to “further their own political and social ends,” turning against Black people “when it suited their purposes,” Thomas wrote in his memoir.

Thomas’ Black peers, who struggled at mostly White Holy Cross, were “being sacrificed on the altar of an abstract theory of social justice,” Thomas wrote in his memoir.

‘Faddish Theory’

The crux of Thomas’s affirmative action jurisprudence is that Black people are the “main victims” of race-conscious admissions, Robin said. “Not only are they subjected to White paternalism, but it stigmatizes Black people’s achievements as less than that of White people’s.”

In Grutter v. Bollinger, the 2003 decision preserving affirmative action at the University of Michigan’s law school, Thomas wrote a dissent criticizing the “meddling” of university administrators. They interfered with Black students’ ability to achieve in life, Thomas said, while setting up unprepared students for failure in the name of aesthetic diversity.

“The aestheticists will never address the real problems facing ‘underrepresented minorities,’ instead continuing their social experiments on other people’s children,” Thomas wrote.

A decade later, in a pair of cases against the University of Texas at Austin, the Supreme Court again upheld affirmative action. This time, it rejected an argument that UT’s use of race was unconstitutional when trying to create a diverse student body.

In that 2016 ruling, Thomas in dissent criticized the “faddish theory” that discrimination in the name of diversity produces education benefits.

Holding the Ladder

Sotomayor, who’s family moved from Puerto Rico to New York, was raised by a working-class mother who emphasized the importance of education to Sotomayor and her brother, a New York physician.

Sotomayor graduated summa cum laude at Princeton, yet a prestigious law firm attorney claimed she’d only gotten into Yale Law because of racial preference, she writes in her memoir.

Affirmative action wasn’t White benevolence for Sotomayor, who lobbied for greater Latino student and faculty representation through campus activism and recruitment trips to high schools. As Sotomayor put it, she held “the ladder for the next kid with more talent than opportunity.”

The justice didn’t see herself as “not talented, not worthy,” NYU’s Murray said. “She just hadn’t had the same opportunities, and that’s what affirmative action was meant to do—to give her opportunities that other people had as a matter of course.”

‘Meaningful Interactions’

Sotomayor joined the majority in both University of Texas cases without writing separately. But she championed affirmative action in a dissent in a 2014 case in which the court held Michigan voters could bar college affirmative action policies via a ballot proposition.

“Colleges and universities must be free to prioritize the goal of diversity,” Sotomayor wrote in Schuette v. Coalition. “They must be free to immerse their students in a multiracial environment that fosters frequent and meaningful interactions with students of other races, and thereby pushes such students to transcend any assumptions they may hold on the basis of skin color.”

Off the bench, Sotomayor, has said that onlookers should pay more attention to what affirmative action beneficiaries achieve once they enter higher education.

“The question is not, how did I get in? It’s what did I do when I got there?” she told students at Michigan State University in 2018. “And with pride, I can say I graduated at the top of my class.”

To contact the reporter on this story: Tiana Headley at theadley@bloombergindustry.com

To contact the editors responsible for this story: Seth Stern at sstern@bloombergindustry.com; Keith Perine at kperine@bloombergindustry.com; John Crawley at jcrawley@bloombergindustry.com