The editors of Common Law, the online publication of the Wake Forest Law Review, are proud to announce their most recent publication: Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, by Eric J. Segall.
In Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, Eric J. Segall argues that, even though Justice Thomas publicly espouses an originalist approach to constitutional interpretation, his decisions regarding affirmative action “reflect an obvious disregard for text and history.” In Segall’s opinion, the text of the Fourteenth Amendment can be plausibly interpreted as permitting racial classifications that benefit minorities. However, Thomas has so far refused to explore the ambiguity of the word “equal,” choosing instead to take an overly-formalistic view of the equal protection clause. Since there is an ambiguity, Thomas’ originalism would seem to require him to adhere to the original intent of the drafters of the Fourteenth Amendment.
Yet, Thomas has so refused to even acknowledge the abundant historical evidence that “the drafters and ratifiers of the Reconstruction Amendments would have believed racial preferences designed to assist the newly freed slaves were in fact fully consistent with those Amendments.” Because of this, Segall concludes that Thomas’ view on affirmative action cannot be explained as a logical application of his originalism; rather, he speculates that it is the result of bad faith, confusion, or both.
Segall’s full essay is available here.
Preferred citation: Eric J. Segall, Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both, 3 Wake Forest L. Rev. Online 11 (2013).