Landmark Affirmative Action Ruling Nears, And These Two Justices Take Wildly Different Stances

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Kevin Daley Supreme Court correspondent
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A ruling on one of the most consequential affirmative action cases adjudicated in federal court is expected as soon as this week, and two Supreme Court justices have thoroughly opposite convictions on the issue at hand.

The Supreme Court will soon issue an opinion in Fisher v. University of Texas, which may evaluate the constitutionality of race-based admissions programs. This term marks the second time the High Court has heard the case — it was remanded back to a lower court for further arguments in 2013.

The challenge to UT’s affirmative action policy was brought in 2008 by Abigail Fisher, after her application to the university was rejected. Fisher claims she was denied acceptance because she is white — UT’s process for evaluating applications includes race in its scoring. (RELATED: Conservatives Are Set To Win Big In These Three Supreme Court Cases)

This time around, the stakes are personal for two of the justices, both of whom are products of affirmative action — but sharply disagree on its value. 

Justice Clarence Thomas, who is black, is a critic of affirmative action programs. Born in crushing poverty among swampland Georgia’s Creolite Gullah people, Thomas was raised by his grandparents in Savannah, Georgia during the era of Lester Maddox and Jim Crow. While a student at the College of the Holy Cross in Massachusetts, he was a co-founder of the Black Student Union, developed sympathies for the Black Panthers, and often ran afoul of administrators for his activism, the Vietnam War and the assassination of Dr. Martin Luther King Jr setting the scene for his tumultuous college years.

His ideological commitments evolved at Yale Law School, where he found himself at odds with the social stigma of his affirmative action status, and “paternalistic big-city whites,” a frequent subject of derision in his autobiography “My Grandfather’s Son.” After graduating, he struggled to find gainful employment, suspecting the opprobrium of affirmative action had not been left behind in New Haven. 

“Many asked pointed questions, unsubtly suggesting that they doubted I was as smart as my grades indicated,” he told ABC News of the many lawyers he interviewed with while looking for a job. 

He later confined his diploma from Yale Law School to a box in his basement with a price tag pronouncing its value at 15 cents, because — in his view — it “bore the taint of racial preference.” 

Thomas has often spoken candidly of his strident opposition to race-based admissions policies. He told a student group in 2015 that such programs serve the needs of well-heeled universities, rendering students as mere aesthetics, accoutrements in the quest for diversity. Campus diversity is the only rationale the Supreme Court has ever endorsed as constitutionally legitimate in the affirmative action arena.

Contrastly, Justice Sotomayor, who identifies as a “nuyorican,” — a portmanteau of “New York” and “Puerto Rican” — has championed affirmative action programs during her tenure as a federal judge, speaking candidly about her own experience as an affirmative action beneficiary, and railing against her skeptical colleagues.

“More fundamentally, it ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America,” she wrote in a 2014 affirmative action ruling. When the Fisher case was heard a second time, she was chided twice by the chief justice for cutting off the advocate challenging UT’s policy.

Sotomayor is a graduate of Princeton University and Yale Law School. Like her black colleague, she too recalls skeptical glances from furtive white faces as early as during her secondary school years at Cardinal Spellman High School in the Bronx — when she first received a letter from Princeton expressing interest in her application.

“I was stopped by the school nurse and asked why I was sent a possible [acceptance letter] and the number one and the number two in the class were not,” she told Scott Pelley of CBS News is 2013. “Now, I didn’t know about affirmative action. But from the tone of her question I understood that she thought there was something wrong with them looking at me and not looking at those other two students.”

Like Thomas, Sotomayor says her career as a jurist has often endured a quiet, racially-tinged derisiveness from white colleagues who were agnostic if not incredulous about her credentials. “I feel a special responsibility to prove them wrong,” she told NPR in 2o14.

But unlike Thomas, she regards affirmative action as an instrument of equality, and points to herself as the triumph of a plural society. In a panel discussion in the early 1990s, after her appointment as a district court judge in New York by former President Bill Clinton, she said “I am a product of affirmative action. I am the perfect affirmative action baby. I am a Puerto Rican, born and raised in the South Bronx.”

She has since remained engaged in racial activism, often addressing minority or women’s groups. She also took up residence in the D.C.’s U-Street corridor, a polyglot neighborhood she says more closely resembles the heterogeneous housing projects of her youth.

A decision in Fisher is expected as early as Monday.

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