The Supreme Court For The First Time Refers To Our "Colorblind Constitution"

As big as Callais was, I think Allen v. Milligan may prove to be more significant. The Court smacked down the notion that the government “defies” court order when it takes actions designed to be tested before the Supreme Court. The Court also signaled that the presumption of good faith for purposes of Section 2 should apply to other Fourteenth Amendment contexts. (Indeed, I wonder why prosecutors should not get the same presumption of good faith under Batson; this is a topic I am developing.) But the very first sentence of Allen dropped a bomb that most people may have missed:

In Louisiana v. Callais, 608 U. S. ___ (2026), to resolvethe tension between vote-dilution claims under §2 of the Voting Rights Act of 1965 and our colorblind Constitution, we updated the standards for §2 liability established by Thornburg v. Gingles, 478 U. S. 30 (1986).

Did you see it? The Court referred to “our colorblind Constitution.” Of course, Justice Alito was channelling Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896).

But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.

These powerful words were read and re-read during the worst days of Jim Crow. Yet, the Supreme Court has never actually embraced Justice Harlan’s conception of a color-blind constitution, not even in Brown. To the contrary, the Court has often found the Constitution prohibits a color-blind approach to equal protection.

Justice O’Connor made this point expressly in Shaw v. Reno:

Despite their invocation of the ideal of a “color-blind” Constitution, see Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (Harlan, J., dissenting), appellants appear to concede that race-conscious redistricting is not always unconstitutional. See Tr. of Oral Arg. 16–19. That concession is wise: This Court never has held that race-conscious state decisionmaking is impermissible in all circumstances.

Shaw v. Reno, 509 U.S. 630, 642, 113 S. Ct. 2816, 2824, 125 L. Ed. 2d 511 (1993).

Query if Callais and now Allen have abrogated Shaw.

Justice Thomas, for his part, routinely cites Harlan’s dissent, but always in separate writings, including Adarand Constructors, Holder v. Hall, and other cases. Justice Thomas addressed the issue squarely in Parents Involved:

Most of the dissent’s criticisms of today’s result can be traced to its rejection of the colorblind Constitution. The dissent attempts to marginalize the notion of a colorblind Constitution by consigning it to me and Members of today’s plurality.[F19] But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan’s view in Plessy: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (dissenting opinion). And my view was the rallying cry for the lawyers who litigated Brown. See, e.g., Brief for Appellants in Nos. 1, 2, and 4, and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O.T.1953, p. 65 (“That the Constitution is color blind is our dedicated belief”); Brief for Appellants in Brown v. Board of Education, O.T.1952, No. 8, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone”);20 see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, p. X (1993) (remarks of Judge Motley) (“Marshall had a ‘Bible’ to which he turned during his most depressed moments. The ‘Bible’ would be known in the legal community as the first Mr. Justice Harlan’s dissent in Plessy v. Ferguson, 163 U.S. 537, 552, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). I do not know of any opinion which buoyed Marshall more in his pre-Brown days …”).

[FN19] The dissent halfheartedly attacks the historical underpinnings of the colorblind Constitution. Post, at 2815 – 2816. I have no quarrel with the proposition that the Fourteenth Amendment sought to bring former slaves into American society as full members. Post, at 2815 (citing Slaughter–House Cases, 16 Wall. 36, 71–72, 21 L.Ed. 394 (1873)). What the dissent fails to understand, however, is that the colorblind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination—indeed, it requires that such measures be taken in certain circumstances. See, e.g., Part I–B, supra. Race-based government measures during the 1860′s and 1870′s to remedy state-enforced slavery were therefore not inconsistent with the colorblind Constitution.

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 772–73, 127 S. Ct. 2738, 2782–83, 168 L. Ed. 2d 508 (2007).

Does the Supreme Court now agree with Justice Thomas’s invocation of Parents Involved? Did the other Justices, rushed on the emergency docket, miss this line? Who knows? 130 years later, Justice Harlan’s Plessy dissent is now the “supreme law of the land.”

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