Document Type

Article

Publication Date

2004

Center/Program

Center for the Study of Law and Culture

Abstract

Several years ago, a special issue of The New Yorker entitled "Black in America" included an extraordinary profile of U.S. Supreme Court Justice Clarence Thomas.2 Authored by Jeffrey Rosen, the article begins with an account of Justice Thomas's interventions in two of the most important cases decided during the Court's previous term. In the first of these cases, Missouri v. Jenkins, the Court was called upon to define the constitutional scope and limits of the federal judicial power to address racial concentration in Kansas City's public schools through salary increases and the creation of magnet programs.3 In the second case, Adarand v. Pena, the Court was asked to determine the constitutionality of race-based affirmative action requirements in federal construction contracts.4 Those of you who follow the Court's work will recall that in both cases the Supreme Court struck down the programs in question on the ground that the affirmative action and school desegregation plans violated the equal protection components, respectively, of the Fifth and Fourteenth Amendments to the United States Constitution.

Rosen reports that in each case, Clarence Thomas played a crucial role in shaping both the Court's reasoning and its result. Although Thomas had declined to engage the lawyers in oral argument before the Court in the school desegregation case, when the Justices took up the case in private discussion, he intervened vigorously.

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