Clarence Thomas Makes a Full-Throated Case for Racial Gerrymandering – By Mark Joseph Stern (Slate) / May 23, 2024
In a startling concurrence, the justice faulted Brown v. Board of Education for empowering the court to limit racist redistricting.
The Supreme Court’s 6–3 decision on Thursday in Alexander v. South Carolina NAACP is a devastating blow to the fight against racial gerrymandering. Justice Samuel Alito’s opinion for the conservative supermajority guts a series of precedents that guarded against racist redistricting, granting state legislatures sweeping new authority to sort their residents between districts on the basis of skin color.
And yet, as bad as Alito’s opinion was, it didn’t go far enough for Justice Clarence Thomas, who penned a solo concurrence demanding a radical move: The Supreme Court, he argued, should overrule every precedent that limits gerrymandering—including the landmark cases establishing “one person, one vote”—because it has no constitutional power to redraw maps in the first place. And he places much of the blame for the court’s allegedly illegitimate intrusion into redistricting on a surprising culprit: Brown v. Board of Education.
Brown was, of course, the 1954 decision holding that racial segregation in public education violates the equal protection clause. Many of us celebrated its 70th anniversary just last week. But Brown has always had its detractors, and Thomas has long been one of them. He has written that the decision rested on a “great flaw” by focusing on the stigma that Jim Crow inflicted on schoolchildren. He rejected Brown’s assertion that Black children suffered constitutional harm when denied access to integrated education. And he condemned the court’s ongoing efforts to remedy decades of segregation by integrating public school systems by judicial decree, decrying these integration efforts as “predicated on black inferiority.”
Thomas’ latest critique of Brown springs from a similar frustration with the Supreme Court for allegedly overstepping its constitutional role to police racial discrimination. The case at hand, Alexander, involves a South Carolina congressional district that was becoming competitive for Democrats. After the 2020 census, the GOP-controlled Legislature moved thousands of Black voters out of this district, and brought thousands of white voters into it. This population-shuffling shored up the district’s Republican lean, meeting the Legislature’s goal. Voting rights advocates sued, arguing that the redistribution of residents on the basis of race violated the 14th Amendment’s equal protection clause. A federal district court agreed and found the map unconstitutional.
