The following interview is an excerpt from Michael Pack and Mark Paoletta's new book, Created Equal: Clarence Thomas in His Own Words, out from Regnery this month. It has been lightly edited for clarity.
MP (Michael Pack): Would you say affirmative action is one of [those] instances where people are using racial discrimination to achieve a specific objective they think is best?
CT (Supreme Court Justice Clarence Thomas): To be honest with you, I don't even know what "affirmative action" is. People come up with euphemisms, everybody is for something that affirmatively acts—to do what, I don't know. Most people don't know. Whatever it is, it's often defined as equal opportunity, then it's redefined as, "Let's help the poor." We could have done this easily by helping poor people. Let's say we're going to have classes on Saturday morning. I remember suggesting that back in the 60s and 70s. Okay, we're going to have study halls on Saturday mornings that are monitored and with tutors. That's affirmative action. That'll catch you up in chemistry and math, etc. How many people would actually say, "Let's go?" "Oh, no, no, no, I can't do that." But that's affirmative action, that's taking extra steps. So I think that we could have done it in ways, as a policy matter, that would not have run into the Constitution.
MP: In Grutter, in particular, you called the University of Michigan Law School's efforts for diversity an "aesthetic concern." And you pointed out that they could have achieved it by lowering their LSATs, lowering their standards.
CT: Well, the university said they were a state school, and they wanted diversity. Well, the community colleges are diverse, but they are not elite. But they wanted to have a school that was elite and diverse. You've got two things at war. I was pointing out that if diversity was your goal, there were other ways to do it that didn't discriminate.
MP: You pointed out that other public law schools, like Berkeley, had that rule, "You can't discriminate in admissions," and they didn't lose their elite status.
CT: Well, Berkeley is really interesting, but there are lots of schools. This is a big country. I don't like the idea that we ennoble ourselves with this pretense that we're doing good; that's why I called it "aesthetics." I've lived through segregation. Now, it's diversity. I think people should be asked to show what it has produced. We have done some damage in our society, particularly to the people who could least afford the damage. You go back to communities. You go back to the schools. They shut down schools in the name of integration, like my high school in Savannah, St. Pius X High School. They irreparably changed the black teaching profession, and these policies irreparably changed our communities—like my old neighborhood in Savannah, which was a stable, hardworking, but poor neighborhood.
The women in the movie Hidden Figures were more like the people around me. You always had those people—exceptional people—around, people who were just brilliant, and they were black. Suddenly, they turned us all into helpless victims. I don't think creating that attitude is good—that sense of a permanent victim status, like we're serfs or something. I don't think it's good now, and I think it's counterfactual and ahistorical.
MP: In the conclusion of your Grutter dissent, you wrote, "For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. 'Our Constitution is color-blind and neither knows nor tolerates classes among citizens.' Plessy v. Ferguson, (Harlan, J., dissenting). It has been nearly a hundred and forty years since Frederick Douglass asked the intellectual ancestors of the law school to 'Do nothing with us,' and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I, therefore, respectfully dissent from the remainder of the court's opinion and judgment." That is a great paragraph. It was a long time ago, but I'm assuming you still subscribe to it?
CT: Principles don't vacillate. People who are congratulating themselves, they're going to pay a price when they wake up one day and they have no Constitution.
MP: You allude in that conclusion to Justice John Harlan's "color-blind Constitution" statement in his Plessy dissent.
CT: If the Constitution isn't color-blind, then which color? Which one does it mention? There's that great scene in the movie Gettysburg, where [Confederate General George] Pickett, who's finished with his charge and straggles back across the field, whipped, and he sees [General Robert E.] Lee. Lee tells him to pull together his division. He looks at General Lee, and says, "General Lee, I have no division." If we keep it up, we're going to look around and someone will say, "I want my constitutional rights," and they'll be told, "We have no Constitution." I think we have to be really, really careful.
We talk about formation, the things we believe in. Until the mid-1980s, I was not someone who focused that much on the Constitution itself. Having been in government for a while, I saw what government could do and what people would do with governmental power. I began to wonder what was the Constitution meant for? How was it formed? And that's when I had Ken Masugi and John Marini come in to work at [the U.S. Equal Employment Opportunity Commission]. It wasn't to become a judge; it was merely to understand it as an informed official, an informed citizen. We're running the risk of one day not having a Constitution, and hence not having a country. We're going to pay a price. People forget what happened to the great empires of the world: the Ottoman Empire, gone, fragmented; the Habsburg Empire; the Roman Empire. And the one thing that we have is this long-lasting written constitution that should be, for us, like the Holy Grail: to be protected. Our desires don't amend the Constitution—that's the touchstone for everything. It allows us to live in a free society, but it doesn't guarantee us the best position in that free society.
Michael Pack is the former CEO of the U.S. Agency for Global Media and director of the 2020 documentary film, Created Equal: Clarence Thomas In His Own Words.
Mark Paoletta served as an attorney in the George H. W. Bush White House and worked on Justice Thomas' Supreme Court confirmation.
The views expressed in this article are the writers' (and justice's) own.
