Thomas Vs. MoDo- Eugene Volokh,

Thomas Vs. MoDo- Eugene Volokh, pinch-blogging for Glenn Reynolds, has a fascinating article about the criticisms Clarence Thomas is getting over his affirmative action opinions last week.

Lots of people have criticized Justice Clarence Thomas’ anti-race-preferences opinion (from Monday’s Grutter v. Bollinger decision concerning the University of Michigan Law School’s admissions policy), on the grounds that there’s reason to think that he has benefited from some such preferences. Maureen Dowd in The New York Times has a particularly intemperate expression of this view: “It’s impossible not to be disgusted at someone who could benefit so much from affirmative action and then pull up the ladder after himself. So maybe he is disgusted with his own great historic ingratitude.”

The most basic objection to this view, I think, is that if a judge thinks that a policy is unconstitutional, he has an obligation to so vote, whatever his personal history might be. “Gratitude” isn’t a proper basis for constitutional decisionmaking.

But beyond this, I wonder how far these critics would take their criticism. In the 1970s, the Supreme Court held that sex discrimination was unconstitutional. The justices who voted for this position had spent their lives in a nation in which women were largely excluded from the legal profession. Those men may well have benefited from this exclusion — when half the population is out of the competition, the competition is easier. Maybe if men hadn’t gotten preferences, some of those justices wouldn’t have made it onto the high court.

Should Justices Brennan, Marshall, and the others have said “Oh, we benefited from sex discrimination, so it would be ungrateful for us to now hold that sex discrimination is unconstitutional”? Or should they have resigned en masse, in shame at having gotten this benefit that they realized was improper? Should people have berated them for having gotten the advantage of preferences for males, and then denying future generations of men the same advantage (“pull[ing] up the ladder after [themselves]”)?