Clarence Thomas Accidentally Laid the Groundwork for Reviving Affirmative Action

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With a new Supreme Court term beginning this week, it is now perhaps time to reconsider one of the court’s most impactful rulings of the past few years: Students for Fair Admissions v. Harvard^[2].

When the Supreme Court struck down race-conscious admissions in 2023, the headlines all read the same: Affirmative action is over. Chief Justice John Roberts’ majority opinion made the conclusion sound final, even inevitable. And Justice Clarence Thomas’ concurrence drove the nail in the coffin, insisting that the Constitution is and always has been colorblind, tolerating no racial distinctions even if they are designed to remediate decades of racial subordination. But look closer at Thomas’ opinion, and something remarkable happens. In trying to shut the door on race-conscious affirmative action, he may have quietly left another affirmative action door wide open.

In Thomas’ concurrence, to explain why the Freedmen’s Bureau Acts of 1865 and 1866 do not authorize race-conscious affirmative action programs, Thomas recasts the acts as “status-based^[3]” laws rather than race-conscious ones. The bureau, in his telling, didn’t help Black people because they were Black; it helped “freedmen” and “refugees” because of their legal status after the Civil War. Freedmen were overwhelmingly Black, but that didn’t matter, he argued, because the law turned on status, not race. For an originalist like Thomas, this interpretation is critical because original meaning overwhelmingly informs contemporary understandings of the Constitution.

Why does this matter now? In equal protection law, racial classifications trigger the highest level of judicial scrutiny—“strict scrutiny”—and almost never survive. Race-neutral and status-based classifications, by contrast, are generally reviewed under the far more forgiving “rational basis” standard. That’s the difference between a law being almost certainly struck down and one being almost certainly upheld.

If Thomas is right that “freedmen” was a status, not a racial category, in 1865, then today “descendants of American slavery” also designates a status, not a presumptively unconstitutional racial distinction. That means universities, governments, and private institutions could design programs specifically for those descendants—scholarships, admissions preferences, business contracting opportunities—and defend them in court without facing strict scrutiny. On Thomas’ own reasoning, those policies would need only a plausible public purpose to survive. In other words, the very concurrence meant to dismantle affirmative action might also provide the constitutional blueprint to bring it back and to justify reparations programs under a different name.

This is not an academic parlor trick. Since SFFA, universities have been scrambling to find ways to preserve diversity without running afoul of the new rules. Many have turned to indirect proxies (socioeconomic status^[5] or geography) hoping they will produce the same or similar results as race-conscious admissions. But those proxies are blunt, inconsistent, and legally vulnerable if courts see them as thinly veiled racial classifications.

A lineage-based approach, by contrast, would be transparent about its purpose and rooted in the very historical record Thomas invokes. The Freedmen’s Bureau was created to address the specific harms of slavery and its immediate aftermath. If those harms are still felt, as few serious historians and sociologists would deny they are, then policies aimed at the descendants of those harmed fit neatly within Thomas’ own “status not, race” framework.

Indeed, California lawmakers recently proposed legislation^[6] that would permit California public universities to give preferential admissions status to persons who can prove that they are descendants of American slaves. And some universities, like Georgetown^[7], for example, have enacted scholarships for the descendants of the enslaved.

This move flips the usual affirmative action script. The fight would no longer be over whether diversity is a compelling interest, or whether race is an acceptable proxy for disadvantage. Instead, the discussion would be about whether the status of being descended from enslaved people is relevant to addressing persistent inequities today. Under rational basis review, that is an easy case to make.

Of course, this raises thorny questions. How would one define and prove descent? Does this policy leave behind recent Black immigrants whose families were never enslaved in the United States, but who face anti-Black racism? Could white Americans with documented enslaved ancestors qualify? These are not small challenges, but they are questions of policy design, not constitutional law. And they are questions worth answering if we want remedies that are both honest about history and resilient in court.

Critics will say this is just affirmative action by another name. (Cynics also might say that this Supreme Court has hardly been intellectually consistent when facing these ideologically divisive cases, so why expect them to start now.) But that misses the point and the law. If a classification is genuinely about lineage and not race, and if it can be justified on grounds other than racial balancing, then it is not subject to the same constitutional barriers. That’s not a loophole; it’s the logical consequence of the very principles Thomas purports to defend.

There is an irony here that should not be lost. Thomas has spent decades arguing that the Constitution forbids the use of all racial classifications, even those uses meant to remedy racial injustice. Yet in anchoring that argument in a reimagined history of Reconstruction, he has handed policymakers a set of tools to enact programs he would likely oppose. Law is full of such unintended consequences. Sometimes they are the product of sloppy reasoning. Sometimes they result from overconfidence—the belief that a principle, once stated, will always work in your favor. And sometimes they are simply the byproduct of a legal system that evolves through argument, counterargument, and the slow accretion of doctrine.

In this case, the consequence could be profound. If embraced, a “status not race” approach could reopen space for policies that directly address the legacies of slavery without triggering the judicial hostility that doomed traditional affirmative action. It could give reparations programs a fighting chance in court. And it could shift the national conversation from euphemisms and proxies to the real question: What do we owe the descendants of those who built this country?

Thomas did not set out to create that opportunity. But in law, as in life, you don’t always control where your logic leads. The question now is whether universities will take him up on it.

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