A Justice Who Judges by Law, Not Sociology : Clarence Thomas rightly reasons that being more equal is as wrong as being less equal.

Supreme Court Justice Clarence Thomas does not like racial quotas, a view that earns him the disapproval of liberals and some black leaders, who think he looks a gift horse for his people in the mouth. The standard liberal line is to criticize Thomas for benefiting from racial quotas but opposing them for other blacks.

His critics miss the point. Thomas realizes that the real problem is that blacks are still treated unequally. Whereas formerly blacks were denied rights, today they are beneficiaries of special rights. What others in society have to earn by test scores, job performance and low bids are preferments for “protected minorities,” who enjoy contract set-asides and quotas regardless of merit.

Thomas reasons that if the standard is equal treatment, being more equal is as wrong as being less equal. Where Thomas differs from his critics is in the definition of equality. He means equality before the law; his critics mean equality of result. To achieve equality of result, liberals and some black leaders are willing to abrogate equality before the law and establish a system of legal preferments based on race.

Being a man of law rather than a practitioner of judicial sociology, Thomas realizes that racial preferences strike at the heart of constitutional democracy, because democracy is based on people having equal rights as citizens, not differential rights based on group status.

Thomas also realizes that the court’s race rulings have created a presumption that the Constitution permits government to treat citizens unequally. He is correct to be disturbed by the implications of this presumption, because it is unreasonable to assume that a majority of the population will submit indefinitely to being second-class citizens. When the court creates the presumption that differential rights are permissible under the Constitution, there is nothing to prevent the white majority from voting itself the preferred status and making minorities second-class citizens.

In “A Man For All Seasons,” Sir Thomas More, lord chancellor of England, warns against cutting a swath through the law in order to chase after devils. What the court has done is to erase the equal protection clause of the Constitution in order to use government power to remedy lingering results of prior acts of private discrimination.

Nothing in the Constitution says that people individually cannot discriminate, but it does say that the government cannot. Today, we have it the other way around. The government can discriminate against its citizens, but citizens cannot discriminate against one another in their private actions.

Justice Thomas also sees that racial quotas destroy black esteem by promoting the fatalistic attitude that blacks cannot make it in a multiracial democracy unless they are granted special legal rights. This attitude fuels separatist thinking that Balkanizes the population. The only difference between the old feudalism and the new is that the old feudal privileges were based on the presumption of superiority, while the new privileges are based on the presumption of inferiority.

Thomas understands that what is at stake is liberalism itself. Liberalism created the concept of “citizen,” and so vanquished class rank and the status-based legal system that had held sway since the fall of Rome. Before the advent of liberalism, the legal requirement that judges weigh the distinctions of people in dispensing justice made a person’s status a threshold issue before the courts could address the merits of any legal claim.

Today in the United States we see the reappearance of these legal distinctions. “Protected minorities” have unique standing to sue without any requirement of showing that they have ever suffered from an act of discrimination. In the case of government set-aside programs for “socially and economically disadvantaged” persons, “protected minorities” are presumptively qualified, while whites have to prove by “clear and convincing evidence” that they face “diminished opportunities.”

The presumption of disadvantage is often farcical. According to Forbes magazine, the wealthy Fanjul family of Florida, who have Spanish passports and have a $500-million sugar cane fortune, has laid claim to a municipal bond set-aside based on its “protected minority” racial classification. Justice Thomas correctly senses that these preferences do not differ from the privileges of feudal lords that the Founding Fathers banned from our legal system.