On June 2, in an unsigned 6-3 order buried in the Supreme Court’s shadow docket, the conservative supermajority quietly did something it had never done before, declaring the Constitution “colorblind.” In doing so, Slate legal writer Mark Joseph Stern warned that the court gave a permanent constitutional guarantee to those seeking to dismantle civil rights protections.
The unsigned order reinstated an Alabama congressional map that federal courts had repeatedly struck down for intentionally discriminating against Black voters, handing white voters greater control over the state’s congressional map by eliminating a district held by a Black representative.
Stern argued the damage runs far deeper than one House seat.
The court’s decision to constitutionalize “colorblindness,” building on April’s gutting of the Voting Rights Act in Louisiana v. Callais, is already cascading through the legal system, he said. Within a week, Trump’s Department of Justice used the ruling to gut disparate-impact protections under Title VII of the Civil Rights Act, instructing the Equal Employment Opportunity Commission to abandon enforcement that had long shielded workers of color from racially discriminatory employer policies.
The phrase “our Constitution is colorblind” was plucked from Justice John Marshall Harlan’s 1896 dissent in Plessy v. Ferguson, a dissent written to fight Jim Crow, not to dismantle protections for minorities.
Justice Sonia Sotomayor, in her dissent, minced no words.
“It also corrodes the rule of law by rewarding Alabama’s gamesmanship and outright defiance of court orders,” she wrote.
Stern issued a stark conclusion that the court has built a reality-blind Constitution, engineered to mean the opposite of what it was written to do.
“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,” he concluded.
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