Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. Scholars advancing the first view contend that the Clause prohibits the government from racially classifying people. But scholars promoting the second view argue that racial classifications are permissible—provided that the government does not engage in racial subjugation. On no issue have these competing perspectives clashed more intensely than affirmative action. Where the anticlassification view deems those policies unconstitutional for exhibiting race consciousness, the antisubordination view finds them permissible because they do not racially subjugate anyone. 

Conventional antisubordination scholars portray the concept’s support for affirmative action as one part of its larger intellectual program that inexorably champions racial egalitarianism. 

This Article challenges that conventional account by demonstrating that antisubordination’s career has been far more protean, complex, and—above all—strange than scholars typically allow. Some of the most reviled opinions in Supreme Court history were predicated upon antisubordination rhetoric, as that concept has been used both to challenge and to maintain racist regimes. Legal luminaries from across the ideological spectrum, moreover, have often contended that affirmative action marks Black and brown people as substandard. 

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Indeed, it is impossible to understand last Term’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College without foregrounding antisubordination’s multiplicity. That decision introduced “antisubordination” into the U.S. Reports, reframed how affirmative action subjugates racial minorities, and witnessed the Justices talking past each other by wielding the concept in divergent fashions. Grappling with antisubordination’s complexity remains urgent today because the theory has been exported to an ever-growing, astonishingly diverse array of legal domains. 

This Article contends neither that antisubordination must be abandoned nor that affirmative action should have been invalidated. To the contrary, it explores arguments designed to shore up antisubordination and to provide alternate grounds for affirmative action’s constitutionality. It will no longer do, however, simply to ignore antisubordination’s considerable complexity. By tracing the winding, peculiar path of antisubordination, this Article not only recasts Justice Clarence Thomas’s much-debated jurisprudence but also clarifies our nation’s garbled constitutional discourse.

For a long season, sophisticated scholars of constitutional law have contended that the Fourteenth Amendment’s Equal Protection Clause contains two competing visions. The first theory views the Clause as prohibiting the government from engaging in racial classification. The second theory, in contrast, construes the Clause as prohibiting the government from perpetuating racial subordination. In some cases, jurists traveling via these two theories would arrive at precisely the same destination. 

Thus, Brown v. Board of Education would have invalidated school segregation regardless of whether the Justices subscribed to an anticlassification or an antisubordination theory of equal protection. Separate schools both treated students differently on a racial basis (that is, it classified them) and perpetuated racism by suggesting that Black people were inferior (that is, it subordinated them). The centrality of these concepts to modern constitutional law is virtually impossible to overstate, as they form the very axis upon which the Equal Protection Clause turns.

This theoretical debate looms large today because it holds quite tangible consequences for assessing the constitutionality of affirmative action, long among the most incendiary subjects in American law and life. Whereas theories of anticlassification and antisubordination view Brown together as fast friends, those theories quickly become bitter, even ferocious enemies at the first sight of affirmative action. 

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The anticlassification school—associated overwhelmingly with constitutional conservatives—holds that affirmative action violates the Constitution because the programs treat students differently based on race. But the antisubordination school—identified predominantly with legal liberals—contends that affirmative action passes constitutional muster because the programs treat no one as racially inferior. To the contrary, antisubordination theorists suggest that raceconscious admissions policies are designed to combat the racial stratification that has defined U.S. society, with Black and brown people forming a racialized underclass.

In 1976, Professor Owen Fiss published the foundational article advancing what came to be termed the antisubordination theory. “[W]hat the Equal Protection Clause prohibits,” Fiss instructed, is “the state law or practice [that] aggravates [ ]or perpetuates [ ]the subordinate position of a specially disadvantaged group.”Fiss’s timing was hardly accidental, as the Supreme Court’s first, inconclusive brush with affirmative action occurred two years before his article debuted, and its momentous decision in Regents of the University of California v. Bakke would appear two years later. Fiss made no secret that his alternative vision of the Equal Protection Clause was driven by a desire to ensure that judges did not invoke the anticlassification theory to invalidate the then-fledgling affirmative action programs.

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What may have started out as an alternative theory of equal protection has become thoroughly mainstream. Prominent liberal legal scholars have, tipping their academic caps toward Fiss, articulated numerous theories elaborating upon the foundational work. Thus, to name only two major approaches, Professor Laurence Tribe offered “an antisubjugation principle,” and Professor Cass Sunstein advanced “the anticaste principle.” In 2004, Professor Reva Siegel produced an influential piece in this scholarly tradition, offering a notably crisp definition of the antisubordination principle as “the conviction that it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups.” 

Although these theories certainly diverge in their nuances, they are nonetheless united by the overarching commitment that—whatever the terminology—emphasizing antisubordination values means viewing affirmative action as constitutionally permissible. It is not too much to say that this idea serves as the central pillar of modern legal liberalism. As Professor Mari Matsuda has contended: “Progressive legal theorists seek to include antisubordination ideology in the law.”

This Article contends that antisubordination is a far more protean concept than my fellow legal liberals typically allow. Although liberals since the 1970s have overwhelmingly promoted an equal protection dichotomy notable for its tidiness, the constitutional reality is messy, chaotic, and—perhaps above all—strange. The career of antisubordination has been strange, I contend, for two central reasons. First, its origins date not to the 1970s, but instead stretch back much further into U.S. constitutional history. Indeed, some of the earliest Supreme Court opinions interpreting the Equal Protection Clause availed themselves of antisubordination theory, but in ways that bolstered rather than challenged racism. 

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Recovering antisubordination’s forgotten roots succeeds in casting new light on some of constitutional law’s most notorious opinions—including Plessy v. Ferguson and Korematsu v. United States—both of which at least purported to engage in what can be understood as antisubordination argumentation. This historical insight sets the stage for understanding antisubordination’s malleability—and, indeed, its manipulability—in our contemporary constitutional order.

Second, and more importantly, pledging allegiance to antisubordination in no way requires saluting affirmative action. To the contrary, many conservatives who detest affirmative action have often contended that the programs themselves subordinate Black people. By lowering typical admissions standards, critics contend, affirmative action policies perpetuate the odious myth of Black intellectual inferiority. Although arguments contending that antisubordination values undermine rather than support affirmative action have been articulated in high places, traditional antisubordination scholars have steadfastly refused to treat these arguments with the seriousness that they deserve—or even any seriousness at all. 

The dominant approach has been to acknowledge the challenge ever so briefly, and then to bat it away with blunt, conclusory force. Early on, Fiss exhibited the technique: “If the court truly believed that a state policy—even if called ‘benign’—impaired the status of blacks then the policy would be invalid. But I doubt whether anyone believes that preferential admissions to law schools for blacks impairs the status of the group.” Compared to some of his contemporaries, though, Fiss’s treatment was downright expansive, as they often managed to shoo away the objection in a single sentence or buried it in a footnote. More recently, liberal scholars working in the antisubordination tradition have tended to simply ignore arguments contending that affirmative action subjugates and demeans Black and brown people.

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Liberal antisubordination scholars’ refusal to grapple in a sustained fashion with the competing arguments regarding their chief concept is deeply perplexing. Even before Fiss published his seminal article, Justice William O. Douglas wrote an opinion employing antisubordination arguments to attack affirmative action policies. Those policies, Justice Douglas stated, conveyed “stigma and caste,” and placed “a stamp of inferiority” on Black and brown students by suggesting they “cannot make it on their individual merit.” In so arguing, Justice Douglas telegraphed arguments that Justice Thomas has repeatedly invoked against affirmative action, as he has suggested: “These programs stamp minorities with a badge of inferiority.” 

Many other legal luminaries have advanced similar antisubordination claims against raceconscious admissions policies, including then-Professors Richard Posner, Antonin Scalia, and J. Harvie Wilkinson III. Strikingly, several preeminent left-of-center scholars—including Professors Stephen Carter and Randall Kennedy—have voiced similar critiques of affirmative action. Perhaps most surprisingly, Professor Derrick Bell in 1979—one year after Bakke—contended that affirmative action “envelop[es] minority applicants in a cloud of suspected incompetency,” and “reinforce[s] the presumption of inferiority.” Antisubordination, it seems, is a coat of many colors.

This Article endeavors to embrace rather than elide antisubordination’s complexity, which has, over the last few years, grown more complex still. Although interrogating antisubordination’s multiple meanings is an intellectual task long overdue, the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College endows the matter with even greater urgency. Fully understanding that cataclysmic legal dispute is impossible, in my view, without placing antisubordination’s multiplicity at center stage. Students for Fair Admissions’s (SFFA) primary argument can be viewed as sounding in antisubordination logic. Although SFFA occasionally suggested that lowered admission standards tarnished Black and brown students, its primary antisubordinating argument presented a different focus. 

 By imposing lower personal ratings on Asian Americans and artificially capping their enrollment, SFFA maintained, Harvard demeaned that racial group by construing them as nerdy, narrow, and perpetually foreign. Antisubordination served as a throughline for various Justices’ opinions in SFFA v. Harvard, but liberals and conservatives utilized that concept in radically divergent fashions. 

In addition, liberal and conservative Justices in SFFA waged a bizarre battle over which side could more faithfully claim Justice John Marshall Harlan’s dissent in Plessy v. Ferguson, even though that opinion subordi-nated people of Asian descent by construing them as paradigmatic non-Americans. In the most engrossing SFFA opinion of all, Justice Thomas used the term “antisubordination,” the first time that the word ever appeared in the U.S. Reports, and just the second time that a federal court at any level had used it. In a fascinating turn, while Justice Thomas explicitly purported to reject antisubordination, he simultaneously availed himself of the concept in condemning affirmative action. SFFA may have inflicted a mortal blow on race-conscious admission policies, but antisubordination theories will not disappear anytime soon.

Examining antisubordination’s theoretical moorings remains urgent because legal scholars have imported the concept into an astonishingly wide range of constitutional and policy arenas. What began with the Equal Protection Clause’s implications for racial equality, in other words, has now traveled to virtually every legal setting under the sun. Even a partial listing of antisubordination’s various legal domains boggles the mind, as scholars have applied the concept to: the First Amendment; the Second Amendment; the Thirteenth Amendment; the Fourteenth Amendment’s Due Process Clause; the Fourteenth Amendment’s Equal Protection Clause regarding sex; the Nineteenth Amendment; marriage equality; reproductive justice; separation of powers; disability rights; civil procedure; national security; employment law; technology law; and local government law. Understanding that antisubordination’s meaning has been deeply disputed in its country of origin invites innumerable legal scholars to revisit whether the concept can be quite so readily exported into more far-flung lands.

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Before fully delving into these arguments, I wish to make unmistakably clear at the outset that I do not advance these arguments as one of affirmative action’s many, many detractors. To the contrary, I have expended considerable effort seeking to preserve a policy that has, in my view, served as a significant engine of mobility in American life, and thereby dramatically improved our nation. In no sense, then, do I welcome the Supreme Court’s misbegotten decision in SFFA. Rather, I abhor it. 

In addition, nothing herein should be taken as concluding that antisubordination must be abandoned. I do believe, however, that it will no longer do for proponents of antisubordination to close their eyes to the substantial claims—advanced by formidable legal theorists of various stripes—in the hopes that those complications will somehow magically disappear. That intellectual strategy seldom pays dividends. Therefore, although the bulk of this Article explores antisubordination’s deeply contested nature, I fervently hope that it sparks dialogue among traditional antisubordination theorists regarding how the concept might be defended, refined, and elaborated. Later, I sketch some arguments in this vein, but these efforts seek to begin that long-overdue conversation, not end it.

The balance of this Article unfolds as follows. Part I sets the stage by briefly rehearsing the standard antisubordination theory, and then demonstrating how anticanonical Supreme Court opinions—including Plessy and Korematsu—complicate the conventional account. Turning to affirmative action, Part II examines pervasive claims that the programs do not ameliorate racial subordination, but instead perpetuate it, as articulated in judicial opinions, conservative commentary, and—surprisingly—some liberal commentary. 

With that background established, Part III identifies how antisubordination formed a leitmotif in SFFA v. Harvard, shaping the briefs, oral arguments, and, of course, the opinions themselves. Part IV explores various methods that liberal antisubordination scholars could use to counteract these persistent efforts to claim that affirmative action policies subjugate various racial minorities. Part V pivots to contemplate implications flowing from antisubordination’s contested meaning for affirmative action, by recasting prominent scholarly understandings of Justice Thomas, and exploring integration as an alternative justification. A brief conclusion follows.

In 1991, more than three decades ago now, Professor Carter observed that “it is hard to hold an honest conversation about affirmative action,” and that “[i]t may be harder still to hold an honest conversation about the reasons why it is hard to hold an honest conversation” about the inflammatory subject. The intervening thirty-three years have not rendered that conversation much easier. Within legal circles, a severely underappreciated reason for the difficulty of that conversation stems from the fact that liberal supporters of affirmative action believe that the programs alleviate racial subordination, and conservative critics believe that the programs perpetuate racial subordination. 

The two competing sides seem not even to appreciate that they are using the same concept to arrive at diametrically opposed conclusions. By identifying longstanding—though unacknowledged—commonality regarding the importance of antisubordination to affirmative action debates, this Article endeavors to make conversations about that heated issue, the Equal Protection Clause, and our larger constitutional order a little easier. I do not suffer from the delusion that conservatives and liberals will now magically agree on the constitutionality of race-conscious admissions policies, but I do hope that this Article will at long last equip willing participants to engage meaningfully on the pivotal constitutional concept of antisubordination. 

https://lawreview.uchicago.edu/print-archive/strange-career-antisubordination