74 Pages Posted: 22 Sep 2006
Careful examination of Justice Clarence Thomas's dissenting opinion in the landmark affirmative action case Grutter v. Bollinger is important for a number of reasons: First, as one of the youngest members of the U.S. Supreme Court, Thomas stands a reasonable chance of still being a member of the court in 25 years, the self imposed implosion date (sunset provision) established by Justice O'Connor's majority opinion. No doubt, Thomas relishes the idea of writing the majority opinion that kills affirmative action and racial preferences for good.
Second, much as Justice Harlan's dissenting opinion in Plessy v. Ferguson was used as a guide for the majority opinion in Brown v. Board of Education, Thomas's dissenting opinion in Grutter may eventually be looked to when the majority opinion is written that ends affirmative action programs once and for all.
Third, in Grutter, Thomas was presented with yet another opportunity to return to the compassion he championed during his Senate confirmation hearings. Thomas refused this opportunity.
Finally, evaluating Thomas's Grutter dissent will serve to cement his race jurisprudence, as Grutter likely represents one of the most important race case that will come before the Supreme Court during Thomas's tenure.
The attached article carefully reviews Thomas's dissent in Grutter v. Bollinger and examines the originalist rationale that he seemingly abandons in writing his saucy and sarcastic dissent.
Keywords: affirmative action, clarence thomas, grutter, bollinger, originalism, critical mass, aesthetic, frederick douglass
Suggested Citation: Suggested Citation
cummings, andré douglas pond, Grutter v. Bollinger, Clarence Thomas, Affirmative Action and the Treachary of Originalism: The Sun Don't Shine Here in this Part of Town. Harvard BlackLetter Law Journal, Vol. 21, pp. 1-72, 2005. Available at SSRN: https://ssrn.com/abstract=931998