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This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court. Keep up with all of our Supreme Court coverage and analysis by signing up for weekly email roundups. The best way to support our work—and unlock exclusive legal analysis—is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
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On June 2, in an unsigned, 6–3 shadow docket , the Supreme Court transformed a fiercely contested theory of racial discrimination into the law of the land. For the first time ever, the court declared that the Constitution is “colorblind,” and does not tolerate the government’s consideration of race even when its goal is to help minorities secure equal rights. The ruling’s immediate impact was to let Alabama hand white voters greater control over its congressional map by eliminating one district held by a Black representative. But the supermajority’s move to constitutionalize “colorblindness” has sweeping implications in many other areas of the law. And as an by Justices Samuel Alito illustrated on Monday, this novel principle will frequently harm the very racial minorities it ostensibly protects by forcing the government to ignore the realities of racism. The supermajority may trumpet “our colorblind Constitution” as a cure for all racial ills. In practice, however, it more often exacerbates them, entrenching white supremacy under a constitutional guarantee meant to destroy it.
Alito’s opinion, joined by Justice Clarence Thomas, is a textbook example of this distortion. The justice dissented from the Supreme Court’s refusal to hear U.S. v. Carter, a case involving racism in policing. After an officer stopped, frisked, and found a gun on Donte Carter, a lower court suppressed the evidence, concluding that Carter’s “racial status as a Black man” was relevant to whether he would have felt free to leave the encounter. Citing evidence that Black men are more likely to comply with police demands during suspicionless stops, the court found that Carter likely felt less free to walk away than a white person would in the same situation.
Donald Trump’s Department of Justice that decision to SCOTUS, complaining that it rested on “an impermissible racial stereotype.” On Monday, the court turned away the case over Alito and Thomas’ dissent. In a brief opinion lodging his objection, Alito complained that the real racism afoot in this case came from the lower court. Its conclusion, he wrote, reflected the “dangerous” belief that a person should “be treated differently based on statistics, studies, or expert testimony” about “members of the racial or ethnic group to which he belongs.” The Constitution, he asserted, does not permit “an individual to be treated differently based on a perception that members of” the same race “think alike.” Rather, “our Constitution is color-blind,” and this kind of “special treatment” for Carter clashed with the 14th Amendment’s guarantee of equal protection.
Alito and Thomas’ play here is not subtle: Having finally shoehorned colorblindness into the law, the justices want to apply it across the board—even though SCOTUS has long held that race is “not irrelevant” to 4th Amendment analysis. To see why these justices’ expansion of the theory is so pernicious, it’s important to look past the slogan to the history behind it. The claim “our Constitution is colorblind” originated in Justice John Marshall Harlan’s famed dissent in 1896’s Plessy v. Ferguson, which held “separate but equal” laws under the 14th Amendment. Plucked out of context—as today’s conservative judges unfailingly do—it sounds like a flat rejection of any government action that takes race into account.
But that is not, in fact, how Harlan meant it: In context, his broader argument was that permitting Jim Crow segregation would authorize a racial “caste” forbidden by the 14th Amendment. He cast no doubt upon race-conscious remedies that the government might take to ensure that “all citizens are equal before the law.” In recent decades, though, conservative lawyers, judges, and politicians have seized upon Harlan’s maxim as a rallying cry against any recognition of race by the state, even when its aim is to secure the equal citizenship of Black and brown Americans.
As a matter of original meaning, this theory of the 14th Amendment is simply false. The lawmakers who wrote and ratified the equal protection clause also enacted laws that took race into account to protect people of color from discrimination. Their stated goal was to dismantle a racial hierarchy, not compel the government to ignore race altogether. Reinterpreting their handiwork to banish all racial considerations is overly simplistic and , relying upon cherry-picked quotes from a few Framers to disregard the Reconstruction Congress’ deeper purpose in passing the amendment. For many years, the Supreme Court refused this two-dimensional conception of equal protection. But it did so over the vigorous dissents of Justice Clarence Thomas, joined by a growing chorus of conservative colleagues who adopted his pseudo-originalist demand for colorblindness.
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The tide began turning decisively in Thomas’ favor in 2023’s , when the supermajority effectively abolished affirmative action. Even then, though, the court did not commit itself entirely: Chief Justice John Roberts’ majority opinion approvingly quoted Harlan, but stopped short of announcing that colorblindness was now the law. In April’s , it took another step in that direction by gutting the Voting Rights Act on the grounds that protecting Black Americans from racial gerrymandering was, itself, unlawfully racist. Still, the hammer didn’t drop until the court quietly released a follow-up in June that constitutionalized Callaisand proclaimed, without equivocation, that the Constitution is “color-blind.”
The self-congratulatory tone of this proclamation makes it sound as if the court purged racism itself from American society. Quite the opposite: This jurisprudential flash-bang stripped Congress, courts, states, and territories of their authority to combat racism by recognizing race. The first domino fell one week later, when the Department of Justice gutted disparate-impact liability under Title VII of the Civil Rights Act. Traditionally, an employer could run afoul of Title VII by imposing policies with a disproportionate impact on one racial group. (One classic example is an aptitude test that has nothing to do with job ability but favors white applicants over Black ones.)
This conception of the law, DOJ held, conflicted with “our colorblind Constitution,” because it “spurs employers to engage in race-based decisionmaking to avoid liability.” (This is another way of saying that it cautions employers against adopting policies that disproportionately harm people of color.) For support, DOJ cited the Supreme Court’s recent redistricting decisions. It instructed the Equal Employment Opportunity Commission to end its “unconstitutional reading of Title VII” and authorize disparate-impact suits exclusively to “smoke out intentional discrimination.” This logic will hamstring enforcement of federal disparate-impact protections in other areas, including education, housing, and credit. It’ll make it harder for people of color to win lawsuits against employers, landlords, and banks whose ostensibly neutral policies perpetuate racial exclusion. And all this will be done in the name of promoting racial equality. Is that really what Justice Harlan wanted?
In fairness, if the Supreme Court’s conservative supermajority really committed itself to rigid colorblindness, there would be some benefits for racial minorities. The court could, for instance, stand guard against government persecution of Black and brown communities that’s rooted in the “racial stereotypes” Alito bemoaned. Alas, when presented with this opportunity, the Republican-appointed justices whiffed: In September, they a lower court decision that had limited Immigration and Customs Enforcement’s ability to detain Latinos on the basis of ethnicity. Justice Brett Kavanaugh’s notorious concurrence insisted that the Constitution does not prohibit immigration officers from using “apparent ethnicity” as a factor in deciding whom to stop and interrogate. So the court’s newfound colorblindness appears to be a one-way ratchet. It appears whenever the supermajority needs to shoot down race-conscious remedies for discrimination against minorities. And it vanishes whenever the Trump administration seeks permission to target Latinos because of their race.
An equal protection clause that kicks in when the government wants to help racial minorities and disappears when it wants to hurt them is no protection at all. Alito knows this. So do Thomas and his other conservative colleagues. What these justices are constructing is not a colorblind Constitution but a reality-blind Constitution that twists the 14th Amendment to mean the opposite of what its Framers intended. They knew that sometimes the government must acknowledge race to battle racism, and left it free to do just that. Now—in voting rights, policing, employment discrimination, and much more to come—the Supreme Court is enlisting colorblindness in the service of racial subordination. “The colorblind Constitution” is a catchy, memorable way to think about equal protection. It may also be the death of it.