Ronald Turner (University of Houston Law Center) has posted Disparate Treatment: Justice Clarence Thomas's Conspicuously Nonoriginalist Affirmative Action Jurisprudence (19 Texas Journal on Civil Liberties and Civil Rights 251 (2014)) on SSRN. Here is the abstract:
In the eagerly anticipated but anticlimactic decision in Fisher v. University of Texas at Austin the United States Supreme Court, by a 7-1 vote, held that the United States Court of Appeals for the Fifth Circuit did not correctly apply the strict scrutiny standard of judicial review in assessing the constitutionality of the university’s race-conscious undergraduate admissions process. Joining the Court’s opinion, a concurring Justice Clarence Thomas, an avowed originalist, agreed that the Fifth Circuit did not properly apply strict scrutiny and, going further than the majority, argued that the Court’s 2003 Grutter v. Bollinger decision should be overruled. Conspicuously absent from Justice Thomas’s concurrence is any reference to or application an originalist interpretive methodology. While Justice Thomas has issued originalist opinions in constitutional cases involving, for example, the Commerce Clause, the First Amendment, the Takings Clause, and the Ex Post Facto Clause, he does not employ an originalist analysis when seeking an answer to the question whether certain race-conscious governmental actions violate the Constitution. This essay discusses Justice Thomas’s conspicuously nonoriginalist affirmative action jurisprudence, and provides commentary on the ways in which the nonoriginalist views of Justice Thomas in this area of constitutional law are, in all material respects, the same as Clarence Thomas’s nonjudicial and personal views and positions.