WASHINGTON — When the Supreme Court struck down college affirmative action programs, conservative Justice Clarence Thomas laid out his vision of a «color-blind Constitution» in which the law should apply equally to all, even when its goal is to redress discrimination. historical race.
In his dense and candid 58-page concurring opinion that drew on his own experiences as a black man, Thomas mounted what he called a «color-blind defense of the Constitution» to clarify that «all forms of discrimination based on race, including -called affirmative action- are prohibited by the Constitution».
But his comments met fierce resistance both inside and outside of court, illustrating how the conservative argument that the law shouldn’t take race into account at all is a hotly contested issue.
Liberal Justice Ketanji Brown Jackson, who, along with Thomas, is one of only three black justices to have served on the court, responded bitterly to her conservative colleague in her own dissenting opinion in the affirmative action case.
«Forgetting to let them eat cake, today most pull the strings and announce ‘colorblindness for all’ by legal decree. But considering race irrelevant in law doesn’t mean it is irrelevant in life.» Jackson wrote.
He argued that for many Americans, race permeates their «lived experience» every day.
«The best that can be said about the majority perspective is that it proceeds (ostrich-like) from the hope that avoiding consideration of race will end racism,» Jackson wrote.
The approach taken by the court in Chief Justice John Roberts’ majority opinion on Thursday has been a long-term goal of conservative legal activists.
Ilya Shapiro, a scholar at the conservative Manhattan Institute, welcomed the majority’s decision, saying that, at least when it comes to education, the court has adopted a clear color-blind standard.
«I don’t think there is room for manoeuvre,» he said.
Roman Martinez, Roberts’ former law clerk, said the ruling was «the culmination of the chief’s longstanding efforts to limit what he considers to be unconstitutional uses of race in the educational context.»
For civil rights activists, the decision to adopt color-blind language was a blow.
“The idea that the Constitution or the country itself is color blind is a farce,” said Janai Nelson, president of the Legal Defense Fund.
«Race and the subjugation of Blacks and Native Americans, especially, are part of the legal foundations of our society and persist today,» he said.
The silver lining for those on the left was that the affirmative action ruling was just one of three race-related cases before the justices in the term ending Friday in which the «color-blind Constitution» arguments were successful. .
When the Supreme Court’s term began in October, there was a murmur of expectation among court observers that the three cases would give the conservative justices, who hold a 6-3 majority, a chance to make a big statement. about his adherence to the idea.
But in the other two cases, one involving the landmark Voting Rights Act and another challenging a federal law governing Native American adoptions, the divided court rejected claims brought by conservative lawyers who defended what they said were interpretations of the racially neutral law.
Rather than weaken a key provision of the Voting Rights Act of 1965 in an Alabama redistricting case, the court reinforced it.
Rather than strike down parts of the Indian Child Welfare Act of 1978, the court upheld it for the most part and rejected other claims.
Both rulings came as an unexpected relief to civil rights groups.
Jon Greenbaum, staff attorney with the Lawyers Committee for Civil Rights Under Law, said he was «pleased, but not necessarily surprised» that the court fell short of accepting race-neutral arguments across the board.
«I wasn’t sure there would be five votes in favor of that proposal,» he said.
It was most strongly rejected in the case of Alabama in which the Republican-led state had sought to overturn a lower court ruling that said its map of congressional districts discriminated against black voters by diluting their votes among different districts where White voters dominate.
The state had argued that in such cases, courts should not focus on racial factors when there is evidence that «racial neutrality» considerations were taken into account as part of the mapping process.
But in a big surprise, Roberts, author of a 2013 ruling that struck down a separate provision of the Voting Rights Act, wrote the majority opinion issued June 8 rejecting Alabama’s argument.
A week later, conservative Justice Amy Coney Barrett authored the 7-2 ruling in the Native American adoption case, finding that Congress had broad authority to legislate on family law issues.
In both cases, however, the court left open the possibility of future race-based challenges, meaning defenders of both federal laws cannot rest easy.
The court did not consider the merits of the claim that the adoption law discriminated on the basis of race by giving preferences to Native American families seeking to adopt Native American children.
Emphasizing that the issue of racial discrimination has yet to be decided, conservative Justice Brett Kavanaugh wrote in a concurring opinion that it is a «serious» issue that the court should decide in a later case.
Kavanaugh made a similar pronouncement in the voting rights case, saying he did not rule out challenges based on whether there is a time when the 1965 law’s authorization of consideration of race in redistricting is no longer justified. .
Shapiro said the court’s decision not to directly address racial issues in voting and Native American cases could reflect Roberts’ preferred slow-and-steady approach to changing the law, something his fellow conservatives on the bench don’t do. they always agree.
“The court led by Roberts doesn’t want to decide things it doesn’t need to decide,” he said.