The Antithetical Worlds of Justices Jackson and Thomas
An IllAdvised Opinion on dividing the universe into 'Black' and 'White'
Gal 3:28 There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus.
In the recent exchange between Justice Clarence Thomas and Justice Jackson in duelling Supreme Court opinions, Justice Thomas dryly says, “Justice Jackson has a different view.” As understatement, this is well put. As a statement of reality it might be better to say that Justice Thomas and Justice Jackson live in different universes. And antithetical ones.
As Justice Thomas states, and Justice Jackson illustrates, Justice Jackson lives in a Black and White world. Not ‘black and white’ as in someone who puts everything into distinct and binary moral categories, but ‘Black and White’ as in there exists (in her mind) only two different kinds of people in the world: the Black (into which she lumps a smorgasbord of people) and the White (which category too includes many, many people).
The most blatant illustration of this is when Justice Jackson boiled down the entire debate of whether Asians should be discriminated against in Harvard into two characters: whom she named ‘James’ and ‘John’.
Imagine two college applicants from North Carolina, John and James. Both trace their family’s North Carolina roots to the year of UNC’s founding in 1789. Both love their State and want great things for its people. Both want to honor their family’s legacy by attending the State’s flagship educational institution. John, however, would be the seventh generation to graduate from UNC. He is White. James would be the first; he is Black. Does the race of these applicants properly play a role in UNC’s holistic merits-based admissions process?
To which Justice Thomas replied:
…the classifications that Justice Jackson draws are themselves race-based stereotypes. She focuses on two hypothetical applicants, John and James, competing for admission to UNC. John is a white, seventh-generation legacy at the school, while James is black and would be the first in his family to attend UNC. Post, at 3. Justice Jackson argues that race-conscious admission programs are necessary to adequately compare the two applicants. As an initial matter, it is not clear why James’s race is the only factor that could encourage UNC to admit him; his status as a first-generation college applicant seems to contextualize his application. But, setting that aside, why is it that John should be judged based on the actions of his great-great-great-grandparents? And what would Justice Jackson say to John when deeming him not as worthy of admission: Some statistically significant number of white people had advantages in college admissions seven generations ago, and you have inherited their incurable sin?Nor should we accept that John or James represent all members of their respective races. All racial groups are heterogeneous, and blacks are no exception—encompassing northerners and southerners, rich and poor, and recent immigrants and descendants of slaves. See, e.g., T. Sowell, Ethnic America 220 (1981) (noting that the great success of West Indian immigrants to the United States—disproportionate among blacks more broadly—“seriously undermines the proposition that color is a fatal handicap in the American economy”). Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping.11
To further illustrate, let’s expand the applicant pool beyond John and James. Consider Jack, a black applicant and the son of a multimillionaire industrialist. In a world of race-based preferences, James’ seat could very well go to Jack rather than John—both are black, after all. And what about members of the numerous other racial and ethnic groups in our Nation? What about Anne, the child of Chinese immigrants? Jacob, the grandchild of Holocaust survivors who escaped to this Nation with nothing and faced discrimination upon arrival? Or Thomas, the great- grandchild of Irish immigrants escaping famine? While articulating her black and white world (literally), Justice Jackson ignores the experiences of other immigrant groups (like Asians, see supra, at 43–44) and white communities that have faced historic barriers.
(Context for both quotes is posted below.)
Now at first when I read this I grinned. I love debates where someone gets to pull a ’gotcha’ moment. But as I prepared for this post I slowly came to the realisation that this wasn’t a ‘gotcha’ moment.
When Greg Bahnsen famously answered ‘the laws of logic’ in ‘The Great Debate’, everyone who was watching, and who watched or listened to it afterwards (the moment is not as dramatic in the transcript) not only laughed, but were all sure that Bahnsen’s opponent (who seemed not to have prepared for the debate in the slightest) wished he had a time machine and could have taken the question back. Indeed the entire debate.
But Justice Jackson had a time machine. Not a literal one, but a practical one nonetheless. She spent months writing this opinion, and during at least some of those months she had access to Justice Thomas’s opinion! Not only the footnotes but the opinions themselves make that clear.
She could, at any time, have, if not rewritten her opinion, at the very least written a footnote in which she dealt with Jack, Anne, Jacob, and Thomas. She could have written (there seems to be no word limit on these opinions) thousands of words describing to us how those other characters, invented in the fertile mind of Justice Thomas (or one of his clerks), would have been handled with her idea of how affirmative action could be worked out.
Or, not. Two reasons come to mind. The first is that she knows full well that Anne, Jacob, and Thomas would come out worse. She might even like the idea. She may know full well that Harvard is much fuller of Jack than James. She may even like the idea.
Or it may be that she can’t write such a thing… because she can’t imagine such a thing. That her mind cannot accept any more categories than two. That when Justice Thomas laid out six categories of people instead of two… and pointing to the horizon called upon us to imagine thousands more… her mind could not stretch that far. In her mind there can be only two categories… Black and White. The oppressed and the oppressor.
It seems to me that not only Justice Jackson and Justice Thomas live in two different universes, but many of the rest of us do, too. Some of us live in a Black and White world, full of oppressed and oppressors. One is either given a hand up, or slapped down.
Others of us, at least part of the time, live in a world full of differing colours, some doing better than others, and some doing better than others (if you think that’s a typo, read it again a few times). I know which world I want to live in, and I know which world is real, but more and more people seem to be opting for the other one.
I love comments, and especially love comments that disagree in an intelligent way. If anyone reads this post, finds it interesting, and would like to get involved in an exchange of ideas, I’m your man. Put in a comment and lets get it done.
References:
Justice Thomas on Justice Jackson:
Justice Jackson has a different view. Rather than focusing on individuals as individuals, her dissent focuses on the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race. As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today. Post, at 1–26 (dissenting opinion). The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to “level the playing field,” all as judged by racial metrics. Post, at 26. I strongly disagree.
First, as stated above, any statistical gaps between the average wealth of black and white Americans is constitutionally irrelevant. I, of course, agree that our society is not, and has never been, colorblind. Post, at 2 (Jackson, J., dissenting); see also Plessy, 163 U. S., at 559 (Harlan, J., dissenting). People discriminate against one another for a whole host of reasons. But, under the Fourteenth Amendment, the law must disregard all racial distinctions:
“[I]n view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Ibid.
With the passage of the Fourteenth Amendment, the people of our Nation proclaimed that the law may not sort citizens based on race. It is this principle that the Framers of the Fourteenth Amendment adopted in the wake of the Civil War to fulfill the promise of equality under the law. And it is this principle that has guaranteed a Nation of equal citizens the privileges or immunities of citizenship and the equal protection of the laws. To now dismiss it as “two-dimensional flatness,” post, at 25 (Jackson, J., dissenting), is to abdicate a sacred trust to ensure that our “honored dead . . . shall not have died in vain.” A. Lincoln, Gettysburg Address (1863).
Yet, Justice Jackson would replace the second Founders’ vision with an organizing principle based on race. In fact, on her view, almost all of life’s outcomes may be unhesitatingly ascribed to race. Post, at 24–26. This is so, she writes, because of statistical disparities among different racial groups. See post, at 11–14. Even if some whites have a lower household net worth than some blacks, what matters to Justice Jackson is that the average white household has more wealth than the average black household. Post, at 11.
This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race. Put simply, “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh-and-blood human beings.” T. Sowell, Wealth, Poverty and Politics 333 (2016). Worse still, Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.
Nor do Justice Jackson’s statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood. If an applicant has less financial means (because of generational inheritance or otherwise), then surely a university may take that into account. If an applicant has medical struggles or a family member with medical concerns, a university may consider that too. What it cannot do is use the applicant’s skin color as a heuristic, assuming that because the applicant checks the box for “black” he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person.
Accordingly, Justice Jackson’s race-infused world view falls flat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.
Justice Jackson then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. Post, at 26; see also post, at 5–7 (Gorsuch, J., concurring) (explaining the arbitrariness of these classifications). Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. Post, at 26 (opinion of Jackson, J.). Social movements that invoke these sorts of rallying cries, historically, have ended disastrously.
Unsurprisingly, this tried-and-failed system defies both law and reason. Start with the obvious: If social reorganization in the name of equality may be justified by the mere fact of statistical disparities among racial groups, then that reorganization must continue until these disparities are fully eliminated, regardless of the reasons for the disparities and the cost of their elimination. If blacks fail a test at higher rates than their white counterparts (regardless of whether the reason for the disparity has anything at all to do with race), the only solution will be race-focused measures. If those measures were to result in blacks failing at yet higher rates, the only solution would be to double down. In fact, there would seem to be no logical limit to what the government may do to level the racial playing field—outright wealth transfers, quota systems, and racial preferences would all seem permissible. In such a system, it would not matter how many innocents suffer race-based injuries; all that would matter is reaching the race-based goal.
Worse, the classifications that Justice Jackson draws are themselves race-based stereotypes. She focuses on two hypothetical applicants, John and James, competing for admission to UNC. John is a white, seventh-generation legacy at the school, while James is black and would be the first in his family to attend UNC. Post, at 3. Justice Jackson argues that race-conscious admission programs are necessary to adequately compare the two applicants. As an initial matter, it is not clear why James’s race is the only factor that could encourage UNC to admit him; his status as a first-generation college applicant seems to contextualize his application. But, setting that aside, why is it that John should be judged based on the actions of his great-great-great-grandparents? And what would Justice Jackson say to John when deeming him not as worthy of admission: Some statistically significant number of white people had advantages in college admissions seven generations ago, and you have inherited their incurable sin?
Nor should we accept that John or James represent all members of their respective races. All racial groups are heterogeneous, and blacks are no exception—encompassing northerners and southerners, rich and poor, and recent immigrants and descendants of slaves. See, e.g., T. Sowell, Ethnic America 220 (1981) (noting that the great success of West Indian immigrants to the United States—disproportionate among blacks more broadly—“seriously undermines the proposition that color is a fatal handicap in the American economy”). Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping.11
To further illustrate, let’s expand the applicant pool beyond John and James. Consider Jack, a black applicant and the son of a multimillionaire industrialist. In a world of race-based preferences, James’ seat could very well go to Jack rather than John—both are black, after all. And what about members of the numerous other racial and ethnic groups in our Nation? What about Anne, the child of Chinese immigrants? Jacob, the grandchild of Holocaust survivors who escaped to this Nation with nothing and faced discrimination upon arrival? Or Thomas, the great- grandchild of Irish immigrants escaping famine? While articulating her black and white world (literally), Justice Jackson ignores the experiences of other immigrant groups (like Asians, see supra, at 43–44) and white communities that have faced historic barriers.
Though Justice Jackson seems to think that her race-based theory can somehow benefit everyone, it is an immutable fact that “every time the government uses racial criteria to ‘bring the races together,’ someone gets excluded, and the person excluded suffers an injury solely because of his or her race.” Parents Involved, 551 U. S., at 759 (Thomas, J., concurring) (citation omitted). Indeed, Justice Jackson seems to have no response—no explanation at all—for the people who will shoulder that burden. How, for example, would Justice Jackson explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color? If such a burden would seem difficult to impose on a bright-eyed young person, that’s because it should be. History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation.
Nor is it clear what another few generations of race- conscious college admissions may be expected to accomplish. Even today, affirmative action programs that offer an admissions boost to black and Hispanic students discriminate against those who identify themselves as members of other races that do not receive such preferential treatment. Must others in the future make sacrifices to re- level the playing field for this new phase of racial subordination? And then, out of whose lives should the debt owed to those further victims be repaid? This vision of meeting social racism with government-imposed racism is thus self-defeating, resulting in a never-ending cycle of victimization. There is no reason to continue down that path. In the wake of the Civil War, the Framers of the Fourteenth Amendment charted a way out: a colorblind Constitution that requires the government to, at long last, put aside its citizens’ skin color and focus on their individual achievements.
Justice Jackson’s reply:
104 Justice Thomas’s prolonged attack, ante, at 49–55 (concurring opinion), responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted. He does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of “individual achievement,” ante, at 51. Justice Thomas’s opinion also demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences. How else can one explain his detection of “an organizing principle based on race,” a claim that our society is “fundamentally racist,” and a desire for Black “victimhood” or racial “silo[s],” ante, at 49–52, in this dissent’s approval of an admissions program that advances all Americans’ shared pursuit of true equality by treating race “on par with” other aspects of identity, supra, at 18? Justice Thomas ignites too many more straw men to list, or fully extinguish, here. The takeaway is that those who demand that no one think about race (a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room—the race-linked disparities that continue to impede achievement of our great Nation’s full potential. Worse still, by insisting that obvious truths be ignored, they prevent our problem-solving institutions from directly addressing the real import and impact of “social racism” and “government-imposed racism,” ante, at 55 (Thomas, J., concurring), thereby deterring our collective progression toward becoming a society where race no longer matters.
Justice Jackson’s original presentation of John and James:
I
A
Imagine two college applicants from North Carolina, John and James. Both trace their family’s North Carolina roots to the year of UNC’s founding in 1789. Both love their State and want great things for its people. Both want to honor their family’s legacy by attending the State’s flagship educational institution. John, however, would be the seventh generation to graduate from UNC. He is White. James would be the first; he is Black. Does the race of these applicants properly play a role in UNC’s holistic merits-based admissions process?
To answer that question, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921). Many chapters of America’s history appear necessary, given the opinions that my colleagues in the majority have issued in this case.
Justice Thurgood Marshall recounted the genesis:
“Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 387–388 (1978).
Slavery should have been (and was to many) self- evidently dissonant with our avowed founding principles. When the time came to resolve that dissonance, eleven States chose slavery. With the Union’s survival at stake, Frederick Douglass noted, Black Americans in the South “were almost the only reliable friends the nation had,” and “but for their help . . . the Rebels might have succeeded in breaking up the Union.”3 After the war, Senator John Sherman defended the proposed Fourteenth Amendment in a manner that encapsulated our Reconstruction Framers’ highest sentiments: “We are bound by every obligation, by [Black Americans’] service on the battlefield, by their heroes who are buried in our cause, by their patriotism in the hours that tried our country, we are bound to protect them and all their natural rights.”4
To uphold that promise, the Framers repudiated this Court’s holding in Dred Scott v. Sandford, 19 How. 393 (1857), by crafting Reconstruction Amendments (and associated legislation) that transformed our Constitution and society.5 Even after this Second Founding—when the need to right historical wrongs should have been clear beyond cavil—opponents insisted that vindicating equality in this manner slighted White Americans. So, when the Reconstruction Congress passed a bill to secure all citizens “the same [civil] right[s]” as “enjoyed by white citizens,” 14 Stat. 27, President Andrew Johnson vetoed it because it “discriminat[ed] . . . in favor of the negro.”6
That attitude, and the Nation’s associated retreat from Reconstruction, made prophesy out of Congressman Thaddeus Stevens’s fear that “those States will all . . . keep up this discrimination, and crush to death the hated freedmen.”7 And this Court facilitated that retrenchment.8 Not just in Plessy v. Ferguson, 163 U. S. 537 (1896), but “in almost every instance, the Court chose to restrict the scope of the second founding.”9 Thus, thirteen years pre-Plessy, in the Civil Rights Cases, 109 U. S. 3 (1883), our predecessors on this Court invalidated Congress’s attempt to enforce the Reconstruction Amendments via the Civil Rights Act of 1875, lecturing that “there must be some stage . . . when [Black Americans] tak[e] the rank of a mere citizen, and ceas[e] to be the special favorite of the laws.” Id., at 25. But Justice Harlan knew better. He responded: “What the nation, through Congress, has sought to accomplish in reference to [Black people] is—what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens; nothing more.” Id., at 61 (dissenting opinion).
Justice Harlan dissented alone. And the betrayal that this Court enabled had concrete effects. Enslaved Black people had built great wealth, but only for enslavers.10 No surprise, then, that freedmen leapt at the chance to control their own labor and to build their own financial security.11 Still, White southerners often “simply refused to sell land to blacks,” even when not selling was economically foolish.12 To bolster private exclusion, States sometimes passed laws forbidding such sales.13 The inability to build wealth through that most American of means forced Black people into sharecropping roles, where they somehow always tended to find themselves in debt to the landowner when the growing season closed, with no hope of recourse against the ever-present cooking of the books.14
Sharecropping is but one example of race-linked obstacles that the law (and private parties) laid down to hinder the progress and prosperity of Black people. Vagrancy laws criminalized free Black men who failed to work for White landlords.15 Many States barred freedmen from hunting or fishing to ensure that they could not live without entering de facto reenslavement as sharecroppers.16 A cornucopia of laws (e.g., banning hitchhiking, prohibiting encouraging a laborer to leave his employer, and penalizing those who prompted Black southerners to migrate northward) ensured that Black people could not freely seek better lives elsewhere.17 And when statutes did not ensure compliance, state-sanctioned (and private) violence did.18
Thus emerged Jim Crow—a system that was, as much as anything else, a comprehensive scheme of economic exploitation to replace the Black Codes, which themselves had replaced slavery’s form of comprehensive economic exploitation.19 Meanwhile, as Jim Crow ossified, the Federal Government was “giving away land” on the western frontier, and with it “the opportunity for upward mobility and a more secure future,” over the 1862 Homestead Act’s three-quarter-century tenure.20 Black people were exceedingly unlikely to be allowed to share in those benefits, which by one calculation may have advantaged approximately 46 million Americans living today.21
Despite these barriers, Black people persisted. Their so-called Great Migration northward accelerated during and after the First World War.22 Like clockwork, American cities responded with racially exclusionary zoning (and similar policies).23 As a result, Black migrants had to pay disproportionately high prices for disproportionately subpar housing.24 Nor did migration make it more likely for Black people to access home ownership, as banks would not lend to Black people, and in the rare cases banks would fund home loans, exorbitant interest rates were charged.25 With Black people still locked out of the Homestead Act giveaway, it is no surprise that, when the Great Depression arrived, race-based wealth, health, and opportunity gaps were the norm.26
Federal and State Governments’ selective intervention further exacerbated the disparities. Consider, for example, the federal Home Owners’ Loan Corporation (HOLC), created in 1933.27 HOLC purchased mortgages threatened with foreclosure and issued new, amortized mortgages in their place.28 Not only did this mean that recipients of these mortgages could gain equity while paying off the loan, successful full payment would make the recipient a homeowner.29 Ostensibly to identify (and avoid) the riskiest recipients, the HOLC “created color-coded maps of every metropolitan area in the nation.”30 Green meant safe; red meant risky. And, regardless of class, every neighborhood with Black people earned the red designation.31
Similarly, consider the Federal Housing Administration (FHA), created in 1934, which insured highly desirable bank mortgages. Eligibility for this insurance required an FHA appraisal of the property to ensure a low default risk.32 But, nationwide, it was FHA’s established policy to provide “no guarantees for mortgages to African Americans, or to whites who might lease to African Americans,” irrespective of creditworthiness.33 No surprise, then, that “[b]etween 1934 and 1968, 98 percent of FHA loans went to white Americans,” with whole cities (ones that had a disproportionately large number of Black people due to housing segregation) sometimes being deemed ineligible for FHA intervention on racial grounds.34 The Veterans Administration operated similarly.35
One more example: the Federal Home Loan Bank Board “chartered, insured, and regulated savings and loan associations from the early years of the New Deal.”36 But it did “not oppose the denial of mortgages to African Americans until 1961” (and even then opposed discrimination ineffectively).37
The upshot of all this is that, due to government policy choices, “[i]n the suburban-shaping years between 1930 and 1960, fewer than one percent of all mortgages in the nation were issued to African Americans.”38Thus, based on their race, Black people were “[l]ocked out of the greatest mass-based opportunity for wealth accumulation in American history.”39
For present purposes, it is significant that, in so excluding Black people, government policies affirmatively operated—one could say, affirmatively acted—to dole out preferences to those who, if nothing else, were not Black. Those past preferences carried forward and are reinforced today by (among other things) the benefits that flow to homeowners and to the holders of other forms of capital that are hard to obtain unless one already has assets.40
This discussion of how the existing gaps were formed is merely illustrative, not exhaustive. I will pass over Congress’s repeated crafting of family-, worker-, and retiree-protective legislation to channel benefits to White people, thereby excluding Black Americans from what was otherwise “a revolution in the status of most working Americans.”41 I will also skip how the G. I. Bill’s “creation of . . . middle-class America” (by giving $95 billion to veterans and their families between 1944 and 1971) was “deliberately designed to accommodate Jim Crow.”42 So, too, will I bypass how Black people were prevented from partaking in the consumer credit market—a market that helped White people who could access it build and protect wealth.43 Nor will time and space permit my elaborating how local officials’ racial hostility meant that even those benefits that Black people could formally obtain were unequally distributed along racial lines.44 And I could not possibly discuss every way in which, in light of this history, facially race-blind policies still work race-based harms today (e.g., racially disparate tax-system treatment; the disproportionate location of toxic-waste facilities in Black communities; or the deliberate action of governments at all levels in designing interstate highways to bisect and segregate Black urban communities).45
The point is this: Given our history, the origin of persistent race-linked gaps should be no mystery. It has never been a deficiency of Black Americans’ desire or ability to, in Frederick Douglass’s words, “stand on [their] own legs.”46 Rather, it was always simply what Justice Harlan recognized 140 years ago—the persistent and pernicious denial of “what had already been done in every State of the Union for the white race.” Civil Rights Cases, 109 U. S., at 61 (dissenting opinion).
B
History speaks. In some form, it can be heard forever. The race-based gaps that first developed centuries ago are echoes from the past that still exist today. By all accounts, they are still stark.
Start with wealth and income. Just four years ago, in 2019, Black families’ median wealth was approximately $24,000.47 For White families, that number was approximately eight times as much (about $188,000).48 These wealth disparities “exis[t] at every income and education level,” so, “[o]n average, white families with college degrees have over $300,000 more wealth than black families with college degrees.”49 This disparity has also accelerated over time—from a roughly $40,000 gap between White and Black household median net worth in 1993 to a roughly $135,000 gap in 2019.50 Median income numbers from 2019 tell the same story: $76,057 for White households, $98,174 for Asian households, $56,113 for Latino households, and $45,438 for Black households.51
These financial gaps are unsurprising in light of the link between home ownership and wealth. Today, as was true 50 years ago, Black home ownership trails White home ownership by approximately 25 percentage points.52 Moreover, Black Americans’ homes (relative to White Americans’) constitute a greater percentage of household wealth, yet tend to be worth less, are subject to higher effective property taxes, and generally lost more value in the Great Recession.53
From those markers of social and financial unwellness flow others. In most state flagship higher educational institutions, the percentage of Black undergraduates is lower than the percentage of Black high school graduates in that State.54 Black Americans in their late twenties are about half as likely as their White counterparts to have college degrees.55 And because lower family income and wealth force students to borrow more, those Black students who do graduate college find themselves four years out with about $50,000 in student debt—nearly twice as much as their White compatriots.56
As for postsecondary professional arenas, despite being about 13% of the population, Black people make up only about 5% of lawyers.57 Such disparity also appears in the business realm: Of the roughly 1,800 chief executive officers to have appeared on the well-known Fortune 500 list, fewer than 25 have been Black (as of 2022, only six are Black).58 Furthermore, as the COVID–19 pandemic raged, Black-owned small businesses failed at dramatically higher rates than White-owned small businesses, partly due to the disproportionate denial of the forgivable loans needed to survive the economic downturn.59
Health gaps track financial ones. When tested, Black children have blood lead levels that are twice the rate of White children—“irreversible” contamination working irremediable harm on developing brains.60 Black (and Latino) children with heart conditions are more likely to die than their White counterparts.61 Race-linked mortality-rate disparity has also persisted, and is highest among infants.62
So, too, for adults: Black men are twice as likely to die from prostate cancer as White men and have lower 5-year cancer survival rates.63 Uterine cancer has spiked in recent years among all women—but has spiked highest for Black women, who die of uterine cancer at nearly twice the rate of “any other racial or ethnic group.”64 Black mothers are up to four times more likely than White mothers to die as a result of childbirth.65And COVID killed Black Americans at higher rates than White Americans.66
“Across the board, Black Americans experience the highest rates of obesity, hypertension, maternal mortality, infant mortality, stroke, and asthma.”67 These and other disparities—the predictable result of opportunity disparities— lead to at least 50,000 excess deaths a year for Black Americans vis-à-vis White Americans.68 That is 80 million excess years of life lost from just 1999 through 2020.69
Amici tell us that “race-linked health inequities pervad[e] nearly every index of human health” resulting “in an overall reduced life expectancy for racial and ethnic minorities that cannot be explained by genetics.”70Meanwhile—tying health and wealth together—while she lays dying, the typical Black American “pay[s] more for medical care and incur[s] more medical debt.”71
C
We return to John and James now, with history in hand. It is hardly John’s fault that he is the seventh generation to graduate from UNC. UNC should permit him to honor that legacy. Neither, however, was it James’s (or his family’s) fault that he would be the first. And UNC ought to be able to consider why.
Most likely, seven generations ago, when John’s family was building its knowledge base and wealth potential on the university’s campus, James’s family was enslaved and laboring in North Carolina’s fields. Six generations ago, the North Carolina “Redeemers” aimed to nullify the results of the Civil War through terror and violence, marauding in hopes of excluding all who looked like James from equal citizenship.72 Five generations ago, the North Carolina Red Shirts finished the job.73 Four (and three) generations ago, Jim Crow was so entrenched in the State of North Carolina that UNC “enforced its own Jim Crow regulations.”74 Two generations ago, North Carolina’s Governor still railed against “ ‘integration for integration’s sake’ ”—and UNC Black enrollment was minuscule.75 So, at bare minimum, one generation ago, James’s family was six generations behind because of their race, making John’s six generations ahead.
These stories are not every student’s story. But they are many students’ stories. To demand that colleges ignore race in today’s admissions practices—and thus disregard the fact that racial disparities may have mattered for where some applicants find themselves today—is not only an affront to the dignity of those students for whom race matters.76 It also condemns our society to never escape the past that explains how and why race matters to the very concept of who “merits” admission.
Permitting (not requiring) colleges like UNC to assess merit fully, without blinders on, plainly advances (not thwarts) the Fourteenth Amendment’s core promise. UNC considers race as one of many factors in order to best assess the entire unique import of John’s and James’s individual lives and inheritances on an equal basis. Doing so involves acknowledging (not ignoring) the seven generations’ worth of historical privileges and disadvantages that each of these applicants was born with when his own life’s journey started a mere 18 years ago.