Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/87

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Cite as: 600 U. S. ____ (2023)

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Thomas, J., concurring

taught us to beware of elites bearing racial theories.” Parents Involved, 551 U. S., at 780–781 (Thomas, J., concurring). We cannot now blink reality to pretend, as the dissents urge, that affirmative action should be legally permissible merely because the experts assure us that it is “good” for black students. Though I do not doubt the sincerity of my dissenting colleagues’ beliefs, experts and elites have been wrong before—and they may prove to be wrong again. In part for this reason, the Fourteenth Amendment outlaws government-sanctioned racial discrimination of all types. The stakes are simply too high to gamble.^[1] Then, as now, the views that motivated Dred Scott and Plessy have not been confined to the past, and we must remain ever vigilant against all forms of racial discrimination.

C

Even taking the desire to help on its face, what initially seems like aid may in reality be a burden, including for the very people it seeks to assist. Take, for example, the college admissions policies here. “Affirmative action” policies do nothing to increase the overall number of blacks and Hispanics able to access a college education. Rather, those racial policies simply redistribute individuals among institutions of higher learning, placing some into more competitive institutions than they otherwise would have attended. See

↑ Indeed, the lawyers who litigated Brown were unwilling to take this bet, insisting on a colorblind legal rule. See, e.g., Supp. Brief for Appellants on Reargument in Nos. 1, 2, and 4, and for Respondents in No. 10, in Brown v. Board of Education, O. T. 1953, p. 65 (“That the Constitution is color blind is our dedicated belief ”); Brief for Appellants in Brown v. Board of Education, O. T. 1952, No. 1, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone”). In fact, Justice Marshall viewed Justice Harlan’s Plessy dissent as “a ‘Bible’ to which he turned during his most depressed moments”; no opinion “buoyed Marshall more in his pre-Brown days.” In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, p. X (1993) (remarks of Judge Motley).

[1] Indeed, the lawyers who litigated Brown were unwilling to take this bet, insisting on a colorblind legal rule. See, e.g., Supp. Brief for Appellants on Reargument in Nos. 1, 2, and 4, and for Respondents in No. 10, in Brown v. Board of Education, O. T. 1953, p. 65 (“That the Constitution is color blind is our dedicated belief ”); Brief for Appellants in Brown v. Board of Education, O. T. 1952, No. 1, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone”). In fact, Justice Marshall viewed Justice Harlan’s Plessy dissent as “a ‘Bible’ to which he turned during his most depressed moments”; no opinion “buoyed Marshall more in his pre-Brown days.” In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, p. X (1993) (remarks of Judge Motley).

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