Clarence Thomas Scolds Lower Courts for Using 'Judge-Made Doctrines' as Supreme Court Issues Unanimous Ruling
Supreme Court Justice Clarence Thomas chided lower courts Thursday for employing “judge-made doctrines” in a discrimination case.
Thomas made the remarks in a concurring opinion to a unanimous decision issued by the high court.
The issue at hand in Ames v. Ohio Youth Department was whether Americans considered part of a majority group must meet a higher standard to prove they have been discriminated against.
Justice Ketanji Brown Jackson, writing for the court, concluded that Title VII of the Civil Rights Act does not require a heightened standard to prove discrimination.
Jackson noted that the Civil Rights Act bars employment discrimination against any individual “because of such individual’s race, color, religion, sex, or national origin.” SCOTUS ruled in 2020 that sex also includes sexual orientation.
Marlean Ames — a straight white woman who worked for the Ohio Department of Youth Services — said she was denied promotion in favor of a lesbian woman and then she was demoted and replaced in the position she held by a gay man.
A federal district court and then the Cincinnati-based Sixth U.S. Circuit Court of Appeals ruled against Ames, applying the “background circumstances” doctrine, CBS News reported.
That doctrine requires the plaintiffs from majority groups to show that their employer is “unusual” in that it discriminates against them. The plaintiffs must prove this either by providing statistical evidence reflecting a pattern of bias or by finding the minority group at issue — in this case, someone who identifies as gay or lesbian — made the hiring decision.
Such was not the case in the employment decision regarding Ames.
Jackson pointed out that the “background circumstances” doctrine — which is applied in five circuits, but not seven others — is not found in the law.
The Supreme Court’s case law “makes clear that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group. … The ‘background circumstances’ rule flouts that basic principle,” Jackson wrote.
“Congress left no room for courts to impose special requirements on majority-group plaintiffs alone,” she added.
Thomas agreed, joining with Jackson’s opinion in full.
“I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks,” he explained.
“Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts. The ‘background circumstances’ rule — correctly rejected by the Court today — is one example of this phenomenon,” Thomas continued.
…Justice Thomas has a biting concurrence: “I join the Court’s opinion in full. I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks. Judge-made doctrines have a tendency to distort the underlying statutory text, impose…
— Jonathan Turley (@JonathanTurley) June 5, 2025
The justice noted that in addition to the standard elements of Title VII, Ames had to show under the doctrine that background circumstances “‘support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
“Courts with this rule have enshrined into Title VII’s anti-discrimination law an explicitly race-based preference: White plaintiffs must prove the existence of background circumstances, while nonwhite plaintiffs need not do so,” Thomas wrote.
“This additional requirement is a paradigmatic example of how judge-made doctrines can distort the underlying statutory text,” he contended.
Thomas concluded, “Atextual, judge-created legal rules have a tendency to generate complexity, confusion, and erroneous results. I am pleased that the Court correctly rejects the atextual ‘background circumstances’ rule today.”
Ames’ case will now go back to the federal district court with instructions to the judge to apply the same standard to her as a plaintiff in a minority group making the legal claim of discrimination.
Thursday’s decision in Ames comes following a 2023 SCOTUS ruling determining that affirmative action policies related to minority groups in college administrations are unconstitutional.
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