On Reading Cases, Ctd.

February 21, 2012

squashed replied to your post: Personal Notes: On Reading Cases

And when it’s a Thomas opinion, I close the book. Because Thomas’s opinions are written terribly. Scalia was at least witty.

Thomas is horrible 99% of the time. But he is actually fairly lucid when he’s writing on very specific topics. His opinion from Grutter v. Bollinger, dissenting on the question of the constitutionality of affirmative action programs, begins with a quote from Frederick Douglass which shook my orthodox “liberal” confidence in the desirability of affirmative action programs:

“[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.” What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).

After reading that quote, I went and read through some of Frederick Douglass’s writings, and since then, I’ve always been on the fence about affirmative action programs. On the one hand, I do think they help remedy the residual effects of structural De Jure inequality. But it’s also clear to me that affirmative action programs often create an imprimatur of infantilization and existential disability, the very same that Douglass was so afraid of. I’m reminded of James Brown’s laconic hit, “I Don’t Want Nobody to Give Me Nothing (Open up the Door and I’ll Take it Myself).” Brown, of course, merely wanted equality of opportunity, not affirmative aid. But the question then becomes whether the “door can be opened” to equality of opportunity in the face of unconscious racism, particularly when perpetuated under ostensibly color-blind justifications (e.g. white felons being hired more often than black felons). In this sense, affirmative action seems bad in theory but necessary in practice, until culturally we can make more progress towards de-coupling unconscious racism from our collective psyche. So in that sense, I still disagree with Thomas, but his opinion certainly had an impact on my thinking.

11:40am | URL: http://tmblr.co/ZMMjnxGnkSzu

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