Conservative Justices Extend ‘Colorblind Constitution’ Embrace

The Supreme Court’s conservative majority has embraced the concept of a “colorblind Constitution” in ending the use of race in college admissions, and now in reshaping how electoral maps are drawn across the US.

The phrase appeared in an unsigned order reinstating congressional maps created by Alabama’s GOP-led legislature that a lower court said intentionally discriminated against Black voters.

The order followed a blockbuster April decision in Louisiana v. Callais that the court’s three liberals warned will make it all but impossible for plaintiffs to successfully bring claims that maps dilute minority voting power.

Callais was necessary, according to the June 2 order, to resolve tension between Section 2 of the Voting Rights Act, a 1965 law meant to combat racial discrimination, and “our colorblind Constitution.”

The phrase was most famously used by Justice John Marshall Harlan in his dissent from the court’s 1896 decision in Plessy v. Ferguson upholding segregation laws. But how best to interpret that line has bitterly divided conservatives and liberals. That the court relied on those words in its redistricting decisions also shows how its jurisprudence has transformed over time, critics say.

“In Plessy, Harlan objected from allowing this obvious racial discrimination to persist, and here the court is quoting his language to allow what a lower court has found to be intentional racial discrimination to persist,” said Nikolas Bowie, a Harvard Law School professor and co-author of “Supremacy,” a forthcoming book about the court.

Conservatives welcomed the recent rulings, which came three years after a divided court effectively barred affirmative action in college admissions.

Alongside that opinion, Justice Clarence Thomas penned an “originalist defense of the colorblind Constitution,” arguing even race-conscious laws seeking to rectify historical discrimination are impermissible. That view now has majority support, said Josh Blackman, a professor at the South Texas College of Law Houston.

“The Court has now coupled redistricting and affirmative action,” Blackman said. “In both contexts, the government must view the people without regard to color, even if the government asserts they are trying to help racial minorities.”

Different Views

Harlan, in his Plessy dissent, argued for the idea of a Constitution that eschewed racial castes.

“Our constitution is color-blind, and neither knows nor tolerates classes among citizens,” Harlan wrote.

Eighty years later, the court was still wrestling with that idea in Regents of the University of California v. Bakke, a landmark case that narrowly upheld affirmative action in college admissions.

Justice William Brennan wrote the court shouldn’t let the aspiration of colorblind law “become myopia which masks the reality” of life in America as a racial minority. His concurrence was joined by Justices Thurgood Marshall, Byron White and Harry Blackmun.

“No decision of this court has ever adopted the proposition that the Constitution must be colorblind,” Brennan said then.

When Thomas invoked a “colorblind” Constitution in 2023, he was directly confronting that stance, Bowie said.

“He was responding to an extremely powerful and intuitive counterargument, which is that the Congress that enacted the 13th, 14th and 15th amendments surely did not think they were stopping Congress from using race to enact legislation to combat racial injustice,” Bowie said.

Roberts Court

If Thomas’ view now prevails among the court’s conservative majority, it has been a process decades in the making.

Starting in the 1970s, conservative justices warmed to “colorblindness” because they didn’t think the government “should engage in affirmative action,” said Michael Klarman, a Harvard Law School professor and civil rights historian.

In 2007, with John Roberts confirmed as chief justice, that view continued its ascendance.

Roberts wrote for a 5-4 majority in one of his earliest opinions that voluntary school integration plans relying solely on race violated the 14th Amendment. Roberts would’ve thrown out racial balancing by schools altogether.

The case produced one of Roberts’ most oft-quoted lines: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

By 2023, Roberts, now at the helm of a solid 6-3 conservative supermajority, had the votes to do what the fractured Bakke court in 1978 couldn’t: effectively end race-based admissions on college campuses.

The slow buildup to the decision reflected the court’s push to the right during Roberts’ tenure, said Jon Greenbaum, a former chief counsel to the Lawyers’ Committee for Civil Rights Under Law.

“The issue of race is one in which the chief justice very much has this colorblind concept,” he said. “What he didn’t have is the votes until recently to put it into place.”

Race and Redistricting

Liberal justices Ketanji Brown Jackson and Sonia Sotomayor, who’s called herself a product of affirmative action, have denounced the majority’s “colorblind” approach. They’ve said it fails to account for the impact race still has on American society.

The affirmative-action decision will make “the colorblind world the majority wistfully touts much more difficult to accomplish,” Jackson wrote in a dissent for the case implicating the University of North Carolina’s admissions.

During arguments in the Callais voter map case, Sotomayor also noted that “race is a part of redistricting always” and is “used to help people.”

The decision, authored by Justice Samuel Alito, said Louisiana’s court-ordered creation of a second-majority Black district was unconstitutional. In doing so, the court said lawsuits must disentangle race from politics, making it harder to press claims in regions like the South, where voting patterns diverge sharply across racial lines.

The court then lifted an order in Alabama that said Callais didn’t affect a finding of intentional discrimination, concluding the lower court didn’t “heed the presumption of legislative good faith.”

The Congressional Black Caucus has warned up to 19 members could lose their seats due to Republican efforts to change maps following Callais. The potential fallout comes as colleges now use programs that may leave them unaware of an applicant’s race.

But redistricting is different, said Stanford Law School professor Pamela Karlan.

“Not only is that data totally available, but everyone drawing district lines knows about it,” she said. “That these districts will be drawn without any regard to race is a pipe dream.”