Pondering Equity and Justice(s) on the High Court

Article excerpt

WHEN CLARENCE THOMAS was a student at Yale Law School, he sometimes hid in the back of the lecture room. He hid his blackness because he didn't want favored treatment.

When Ruth Bader Ginsburg was an untenured law professor, she hid her pregnancy beneath baggy clothes for fear of losing a shot at tenure.

Two bright young people hiding part of their identity because of the distortions of race, sex, discrimination.

Next year, with Ginsburg seated on its far left and Thomas on its far right, the Supreme Court will be asked to overturn President Bill Clinton's "don't ask, don't tell" policy on homosexuals in the military.

Will Ginsburg or Thomas see the officially enforced cloak of silence as the equivalent of baggy clothes or a dark corner of the classroom?

Those challenging the policy have a steep hill to climb. The Supreme Court sidesteps most issues involving homosexuals and has explicitly rejected constitutional protection for homosexual acts. Moreover, the military is the arena where the court is least likely to find homosexual rights.

The incidents where Thomas hid his blackness and Ginsburg her pregnancy give insights into how those two most-recent nominees to the Supreme Court think about discrimination.

At Yale, Thomas feared that his success would be tarnished by the perception that it resulted from favored treatment.

On the Supreme Court, Thomas has consistently rejected legal preferences for blacks and women.

This term, he was the decisive vote in two discrimination decisions. In one, the court said legislators could not remedy past discrimination by drawing an oddly shaped election district to get a black elected. In the other, the court ruled that blacks and women had to show intentional discrimination in job bias cases.

Ginsburg, too, is suspicious of favors, which have historically turned out to be handicaps for women.

But that skepticism does not extend to affirmative action. During Ginsburg's confirmation hearing, Sen. Orrin Hatch, R-Utah, - one of the few senators who asked sharp, probing questions - strongly urged Ginsburg to reject job preferences aimed at fixing numerical disparities.

Ginsburg reminded Hatch of the 1987 decision of Johnson vs. Santa Clara County, where the court upheld an affirmative action plan that resulted in a woman being chosen for a road dispatcher job over a man who rated slightly higher on an evaluation. …

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