By Andrew Chung
(Reuters) – The U.S. Supreme Court’s first Black woman justice, Ketanji Brown Jackson, wasted no time making clear her views on race. On her second day of hearing arguments on the court, Jackson said the U.S. Constitution is not “race blind” and that governments may consider race to ensure that people are treated equally.
Jackson’s conservative colleagues could make that much more difficult as America’s top judicial body considers three major race-related disputes during its current nine-month term. All three involve arguments by conservatives asserting that taking race into account, even when intending to benefit people who have endured discrimination, violates the U.S. Constitution’s guarantee of equal protection under the law.
Jackson made her remarks on Oct. 4 as the justices heard the first of the three disputes, involving the rights of Black voters in Alabama. The second, to be argued on Monday, involves race-conscious admissions policies intended to increase the number of Black and Hispanic students at colleges and universities. The third, to be argued on Nov. 9, involves a federal requirement that Native American families are given priority in adopting Native American children.
The cases give the court’s 6-3 conservative majority a chance to issue broad rulings that could curb actions by governments and other institutions aimed at promoting equal opportunity for minorities or boosting diversity.
The court would be “announcing a principle that all uses of race by the government, except in limited remedial forms, is unconstitutional,” said University of California, Berkeley law professor John Yoo, a former clerk to conservative Justice Clarence Thomas.
“Socially and politically, it’s a really big deal because racial diversity has become such an important part of how all our institutions operate now,” Yoo added.
Critics have said a shift to what proponents call a “color-blind” view of the Constitution would have profound societal consequences, leading to declines in minority representation in politics, prestigious universities and workplaces.
“It would be a massive rewriting of the Constitution in all three cases,” American Civil Liberties Union legal director David Cole said.
The challengers are flipping the idea of equal protection on its head, Cole added, by “invoking it not to protect disadvantaged groups but to block other branches of government and institutions from furthering equality for disadvantaged groups.”
The practical effects on society could be as significant as the court’s blockbuster June ruling ending recognition of a constitutional right to abortion, Cole said.
“It would be a major power grab by the court and it would make it much more difficult for this country to reckon with its legacy of discrimination and its continuing realities of inequality,” Cole added.
By equating current initiatives to foster diversity with past policies like racial segregation, the challengers in the cases are overlooking a fundamental difference between efforts to realize the constitutional promise of equal protection and efforts to flout it, said David Gans of the Washington-based Constitutional Accountability Center liberal legal group.
The court has taken up these cases at a time when the United States is engaged in a fierce debate over how to address racial disparities and treatment of minorities, an issue that gained new urgency after the 2020 murder of George Floyd, a Black man, by a white Minneapolis police officer.
While many Americans support actions by government and the private sector to address under-representation or counter discrimination, others view those efforts with suspicion.
“Racial balance as some sort of ideal – I think the court will say, ‘No longer,'” Yoo said.
U.S. conservatives and Republican elected officials have argued that giving advantages to one race is unconstitutional regardless of the motivation or circumstances. Some have advanced the argument that remedial preferences are no longer needed because America has moved beyond racist policies of the past such as segregation and is becoming increasingly diverse.
The Oct. 4 arguments involved Alabama’s defense of a Republican-drawn map setting the boundaries of the state’s seven U.S. House of Representatives districts – a map that a lower court found unlawfully diluted the clout of Black voters. The map included a single Black-majority district even though Black residents account for about 27% of Alabama’s population.
The Constitution’s 14th Amendment, which promises equal protection, was ratified in 1868 in the aftermath of the American Civil War and the emancipation of Black people who had been enslaved by white people in Southern states. The authors of the amendment meant its equal protection promise “in a race-conscious way” so freed former slaves “were actually brought equal to everyone else in the society,” Jackson told Alabama Solicitor General Edmund LaCour during the arguments.
“That’s not a race-neutral or race-blind idea in terms of the remedy,” the liberal justice added.
LaCour said he viewed the 14th Amendment as “a prohibition on discriminatory state action. It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.”
The affirmative action cases involving Harvard University and the University of North Carolina center on policies intended to boost their numbers of Black and Hispanic students. The group founded by conservative activist Edward Blum that is challenging those admissions policies paints them as discriminatory toward white and Asian American students.
In the adoption case, the Republican-governed state of Texas and other challengers said the federal law that gives preference to tribal members in Native American adoptions discriminates against non-Native Americans based on race.
Some of the conservative justices in the past have made clear their discomfort with racial preferences.
Chief Justice John Roberts famously wrote in a 2007 case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Stanford Law School professor Michael McConnell, a former federal appeals court judge, said jurists should be mindful of the social upheaval their decisions might cause.
“In the areas where there is a great deal of color consciousness today, as in university admissions, we ought to move slowly,” said McConnell, who was appointed to the bench by Republican President George W. Bush.
Universities will resist, McConnell added, if the court tries “to pull the rug out from under all affirmative action programs in one fell swoop.”
“They have no interest in being colorblind,” McConnell said.
(Reporting by Andrew Chung in New York; Editing by Will Dunham)