Back in 1896 as the lone dissenter in Plessy v. Ferguson, which blessed the racist doctrine of “separate but equal,” Supreme Court Justice John Marshall Harlan chastised the majority with this observation: “Our constitution is color-blind.”
“In respect of civil rights, all citizens are equal before the law,” Harlan added.
Now, the court’s majority is set to turn Harlan’s words on their head by embracing a completely different interpretation of constitutional color blindness. This alternative view, which could eviscerate a generation of hard-fought civil rights protections, is one that has long been championed by Chief Justice John Roberts.
Next month the court begins a term that will probably end with the Voting Rights Act in shreds, affirmative action outlawed, and legislative protections for Native American communities significantly rolled back. And it will all be in line with Roberts’s constitutional color-blindness doctrine, which focuses not on the systemic racism in society that runs afoul of the Constitution’s protections, but instead on the very laws and policies that are meant to combat it.
We’ve seen this coming for a while. Less than two years into his tenure as chief justice of the United States, Roberts laid bare his vision of how the Constitution’s guarantee of equal protection works.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he famously wrote in a 2007 opinion striking down school desegregation plans in Kentucky and Washington. Why were those plans barred? Because they took race into consideration.
See what he did there? By considering race in efforts to combat racial segregation, he reasoned, the districts erred. It’s the constitutional Upside Down.
Of course, opponents of civil rights laws and affirmative action took note, following Roberts’s reasoning in a number of legal challenges. In years past, they were not guaranteed success. For example, in 2016 Justice Anthony Kennedy joined the court’s liberal justices in upholding a University of Texas at Austin admissions policy that considered race among a complex set of factors.
But times have changed and so has the court. Now a part of a solid 6-3 conservative majority, Roberts is in a position to make his constitutional Catch-22 the law of the land.
Voting rights will be among the casualties, as the court takes up cases involving congressional map drawing in Alabama and North Carolina, two states with long and persistent histories of racial gerrymandering.
Roberts has already made his color-blind view of the Voting Rights Act clear — he authored the 2013 decision that gutted the law’s pre-clearance requirement meant to address suppressive state voting laws before they went onto effect.
In that decision, Roberts noted the progress that had been made in voting rights protection since the law was passed — including the increase in Black voter participation and the rise in Black elected office holders. And that, he reasoned, was exactly why the preclearance formula Congress enacted had to go.
“Our country has changed,” Roberts wrote, “and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
His rationale drew a strong rebuke then from Justice Ruth Bader Ginsburg, who noted in her dissent: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Roberts’s color-blindness will also be front and center in other cases this term — including a challenge to a federal law that gives Native American families preference in adopting Native American children in the foster and adoption systems. The law was enacted to address the alarmingly high number of Native American children who are taken from their homes and adopted by non-native families. But the fact that it is being challenged as a racial preference that unconstitutionally disadvantages white people could be the death knell for the statute — and by extension, for many endangered Native American communities.
And affirmative action is back too — perhaps for the last time. The challenge of Harvard’s and other schools’ admissions programs puts the court in a position to outlaw it completely. Justice Sonia Sotomayor was prescient when, in dissenting in a 2014 case upholding a Michigan anti-affirmative ballot initiative, she warned that Roberts’s color-blind approach would do harm.
“In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination,” Sotomayor wrote. “It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”
Sotomayor is correct — race matters. It matters in the Constitution, which was repeatedly amended to reflect that fact. It matters in the civil rights laws that are being challenged for their very effectiveness. And it matters in a society where the seeds of discriminatory origins still bear fruit today.
But the chief justice has made clear it doesn’t matter to him.