In the wake of Grutter, I have read some very interesting commentary about Justice Thomas's dissent - particularly, the speculation about Justice Scalia's decision to join "Parts I-VII" of the seven part opinion. At least two critics (I apologize, but I have read so much that I cannot find them or remember who they were) debated whether Thomas's Frederick Douglass quote or Declaration of Independence citation had anyhing to do with Scalia's decision. The implication - with respect to the Douglass quote - being that Thomas's words were "uniquely his" - I guess because he and Frederick Douglass are both black. (The Declaration of Independence argument seemed more persuasive to me, given Scalia's prior treatment of that document.)

Anyway, the thing that bothers me about this is that Thomas's use of the Douglass quote has been attributed to his being black - not his style, his interest in history or the fact that the quote fit perfectly with his opinion. (See, for example, this abhorrent article written by Maureen Dowd in yesterday's NYT. I guess the chance to take a jab at Thomas was worth writing a racist article and jettisoning a likely history of undying support for affirmative action.) This seems pretty presumptuous to me. After reading Jonathan's post and Bakke's treatment of the 14th Amendment/political compromise issue and thinking more about it, I had this thought: Could Thomas's use of the Douglass quote (incidentally, from 140 years ago) have been a tacit way to lend support to the idea that one should not assume that the Framers of the 14th Amendment - or at least their contemporaries - were only concerned with providing a special protection for ex-slaves? (Okay, maybe that's a stretch. At least the quote - roughly contemporaneous with the 14th - could reflect Thomas's interest in historical context.)

Just a thought. At least that makes the use of the quote "uniquely Thomas's" not because he and Douglass happen to be of the same race, but because of Thomas's interest in original understanding - a more palatable proposition in my mind.
- posted by Anonymous @ 6:58 PM