Dahlia Lithwick and I have written this piece for Slate. It begins:
It was impossible to listen to oral arguments this past Supreme Court term without being struck by the way this court’s conservative supermajority views the 14th Amendment. According to these justices, the key Reconstruction-era amendment was intended merely to promote a theory of “color blindness”—in which race is simply ignored—not to actively lift Black people from a previously subjugated status following the end of slavery. Indeed, the newest justice, Ketanji Brown Jackson, made headlines at one of her first oral arguments, when she took pains to debunk this historically dubious theory.
In that voting rights case, Allen v. Milligan, the first Black woman to hold a seat on the Supreme Court explained that the drafters of the amendment intended that its vision be applied “in a race-conscious way” so that freed former slaves “were actually brought equal to everyone else in the society.” She went on to urge “that’s not a race-neutral or race-blind idea.”
Unfortunately, Justice Jackson will likely be raising these points again—this time in dissent—as the Supreme Court is poised to end the term by using the “color blind” formulation to gut affirmative action in higher education, weaken or decimate a key part of the Voting Rights Act, and erode longstanding tribal protections for Native American families and their children. When the court does so, it will be another belated victory for William H. Rehnquist.
The late chief justice, who long sought to turn the 14th Amendment on its head, notoriously drafted a 1952 memo as a Supreme Court clerk that defended racial segregation in the South and the disastrous Plessy v. Ferguson decision on which the institution’s legality was based. While Rehnquist denied during his confirmation hearings that the memo reflected his own views—saying they were meant to reflect those of the justice he was clerking for in 1952, Robert H. Jackson—a newly-released court document, not previously reported, lays bare Rehnquist’s abhorrent true position on segregation as late as 1993.
That year, the then-chief justice was still defending the logic of Plessy in no uncertain terms and using his position as a justice to block the court from acknowledging that the 14th Amendment barred segregation. “The Fourteenth Amendment prohibits discrimination; it does not require integration, and I think it is a mistake to intimate that it does even as a ‘goal,’” Rehnquist wrote in a memo to Justice Sandra Day O’Connor as part of an effort to have her remove a passage from an election decision. (For good measure, Rehnquist also requested O’Connor remove a suggestion that the Civil War was fought in part to secure voting rights for Black people.)….
The stark evidence of Rehnquist’s true views were found in newly released papers of Justice John Paul Stevens, which include the memo from Rehnquist to Justice O’Connor. The context for Rehnquist’s statement was a response to Justice O’Connor’s early draft of the opinion in the case of Shaw v. Reno. In Shaw, a conservative Supreme Court majority ultimately held that taking race too much into account in drawing lines for congressional, state, or local legislative districts violated the Equal Protection Clause of the 14th Amendment. O’Connor’s final opinion for the majority held that drawing such districts “bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.”…