Color Blindness as Judicial Tyranny

From the very beginning of the Roberts Court in 2005, the Chief along with all the conservative justices except Anthony Kennedy (and for the last few months of her tenure, Sandra Day O'Connor), have been obsessed with imposing a uniform rule of color blindness on local, state, and national legislatures as well as public and private elementary and secondary schools, colleges, and universities. Roberts made his values known at the end of the first full term of his court when  he wrote the following [in]famous sound bite in a landmark case prohibiting two cities from voluntarily addressing racially imbalanced schools: “the way to stop discrimination based on race is to stop discriminating based on race.” There are now six justices who hold this view.

There can be no debate that this country allowed formalized racial discrimination against non-whites for most of our history. From slavery to Black Codes to segregation to red-lining, the law allowed discrimination against racial minorities. Some people, like the current conservatives on the Supreme Court, feel that the best remedy for that historical evil is to prohibit any government actor from using race to further legitimate goals, inclduing righting the wrongs of centuries of discrimination against non-whites.

Others, like the current liberals on the Court, following the paths of GOP-nominated justices Stevens and Blackmun, believe that the only way to get past racial discrimination is to use race-based remedies to address the effects of centuries of non-color blindness. As Blackmun once wrote, “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot -- we dare not -- let the Equal Protection Clause perpetuate racial supremacy.”

The Roberts Court has emphatically rejected the latter view, most recently in Louisiana v. Callais, in which the justices admitted that constitutional concerns over color-blindness played a major role in their [mis]interpretation of the Voting Rights Act. According to Justice Alito:

In considering whether the Constitution permits the intentional use of race to comply with the Voting Rights Act, we start with the general rule that the Constitution almost never permits the Federal Government or a State to discriminate on the basis of race. Such discrimination triggers strict scrutiny, and our precedents have identified only two compelling interests that can satisfy that standard.  One compelling interest ... is avoiding imminent and serious risks to human safety in prisons, such as a race riot. The only other compelling interest we have found is remediating specific, identified instances of past discrimination that violated the Constitution or a statute.

How to fight centuries of racial discrimination with continuing lingering effects is not the subject of this post. The point is that nothing in the constitutional text, its history, or the country’s traditions answers that question. Therefore, the Court should defer in all but the most extreme cases to elected leaders and school officials who believe that race-based remedies, such as majority-minority districts or affirmative action educational programs, are tools that are needed to address both the horrors of our past and the effects of that past on the present.

Let's start with the constitutional text. The phrase color-blindness does not appear anywhere in the Constitution. One might think that for alleged textualists this void would be a problem. In fact, the word race doesnot even appear anywhere in the relevant texts the Court waves at in its cases imposing color blindness on every unit of government in America. There is simply no textual basis for the rule.

History fares no better. There is no persuasive account of the Reconstruction Amendments that suggest their original meaning was to prohibit the use of race to address longstanding legalized racial discrimination. The literature on that point is voluminous and persuasive, which probably explains why Justice Antonin Scalia, perhaps the loudest proponent of color blindness other than Justice Thomas, never addressed the question of the original meaning of the Reconstruction Amendments as it pertained to color blindness even though he preached that rule in case after case.

In SFFA v. Harvard, the Court ended affirmative action based largely on its rule of color blindness, with the majority opinion conducting no originalist analysis. Justice Thomas did write a concurring opinion making historical arguments relying almost exclusively on two misleading and unpersuasive amicus briefs, but his opinion was so terrible that no other justice joined it. Given the originalist chest thumping of Justices Gorsuch, Kavanaugh, Barrett, and more recently Alito, one would think those justices would have been happy to sign on to Thomas’s concurrence. Yet, they did not, probably because it was riddled with historical errors.

The Roberts Court has recently taken a turn to tradition in some of its constitutional cases. But there is no tradition of color blindness in America. First, there was slavery. Then, from the late nineteenth century to 1954, “separate but equal” was the law of the land. Segregation lasted for at least a decade after that, and then affirmative action became prevalent until the Court ended it in SFFA in 2022. Majority-minority redistricting continued until Callais was decided a few weeks ago. This country has never, ever been color blind. It is an aspiration, not a tradition.

If there is no text, history, or tradition supporting color blindness as a judicially imposed rule, where does it come from? The answer should be obvious: from the justices’ personal values, ideologies, and politics. If the Roberts Court justices were transparent about why they are doing what they are doing, that would be one thing. In that situation, we could have a useful debate about the pros and cons of color blindness as a way to move past race.

But you will not find such an admission in the Court’s cases. All we have are unexplained sound bites that the Constitution simply prohibits the use of a race as a tool to fight racial discrimination. Chief Justice Roberts’s conclusory assertion that the way to stop discrimination based on race is to stop discriminating based on race provides no supporting analysis. But even as an example of living constitutionalism at its most extreme, that idea is highly contestable because the government using race to make up for past sins cannot be reduced to “discrimination based on race.” A more persuasive description would be the government “using race to make up for country-wide illegal behavior over the centuries based on race.”

The Court’s adoption of color blindness as a blanket rule for all fifty states and the federal government is just as indefensible as a matter of constitutional law as Roe v. Wade’s identification of abortion as a fundamental right. Neither can be justified by reference to text, history, or tradition, and both are controversial constructions of imprecise text and contested historical accounts. Since all of the conservative justices who have embraced color-blindness are on record as strong critics of Roe because that decision was not based on text, history, or tradition, the hypocrisy is plain. The Constitution no more forbids the government from using racial tools to address the effects of racial discrimination than it forbids the government from outlawing abortion. Color-blindness as a constitutional rule is nothing more and nothing less than the ideological preference of a majority of the current Supreme Court. It is, simply put, judicial tyranny.

Eric Segall