Last week, six right-wing Supreme Court justices voted to strike down affirmative action at American colleges and universities. The majority opinion dubiously argued for a “colorblind” admissions process, a term often employed by the right to claim a focus on achievements while ignoring one’s race. On Friday, The New York Times' Jamelle Bouie explained the racist history behind this argument used by the right as a way to argue against policies that aim to address historical and systemic racism.
The Students for Fair Admissions v. Harvard case brought before the court has ties to white nationalism and dark money figures who have long crusaded against civil rights. Following the decision, right-wing media erupted in celebration coupled with racist attacks against Justice Ketanji Brown Jackson before pushing for education privatization and school choice – a policy that is itself rooted in racism.
As Bouie wrote in his op-ed, the term “colorblind” in the context of race and society was popularized by Justice John Marshall Harlan’s sole dissent in Plessy vs. Ferguson, the infamous Supreme Court case that upheld racist segregation laws. But as Bouie explained, the term “does not begin to show up in the opinions of the Supreme Court and its justices with any regularity until the 1980s, when Republican appointees began to take aim at the affirmative action policies of the previous decade.” The term began to be employed by both justices and conservatives to argue against race-conscious laws that sought to address racial discrimination, and as Bouie notes, current Justice Clarence Thomas frequently used “colorblind” arguments to hammer against affirmative action policies.
Bouie explained that though Harlan argued against Jim Crow laws in Plessy, his reasoning was still racist and hinged on legal technicalities, in that he felt that the white race was inherently superior and therefore laws explicitly enshrining white people as dominant were unnecessary.
What is interesting about the conservative use of Harlan’s dissent in Plessy is that it begins and ends with his rejection of legal caste and its assertion that the Constitution “neither knows nor tolerates classes among citizens.” Conservatives seem to be less interested in the words that immediately precede Harlan’s statement of principle.
“The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power,” Harlan wrote. “So I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.” What follows are the words with which we are most familiar.
Bouie cited legal scholar Phillip Hutchison’s 2015 analysis of the Plessy dissent to further illustrate the intent behind Harlan’s “colorblind” argument.”
“Whenever Harlan approvingly spoke of equality, it was always in its legal manifestations,” the legal scholar Phillip Hutchison observes in a 2015 analysis of the Plessy dissent.
Harlan’s brief for the colorblind Constitution rested, within the text, on a belief in the inherent superiority of white Americans and the basic inferiority of their Black counterparts. “Blacks and whites could be ‘equals before the law,’” notes Hutchison, “but that did not mean they were equals in any other respect — in the social realm, racial inequality would rule ‘for all time’ if the nation remained blind to race ‘in view of the Constitution.’ ”
Bouie also cited Douglas S. Reed, a professor of government at Georgetown, whose analysis of Harlan’s dissent reveals the reality behind right-wing arguments against affirmative action today:
[Reed] writes that Harlan’s dissent “rests in part on a legal formalism that forces public actors to hold reality at bay, to ignore the lived realities of inequality within the American experience, and to grasp onto a strict separation between public, legal categories and private, social standing.”
Finally, Bouie further explained how Harlan’s “colorblind” argument is effectively employed today by those with a vested interest in maintaining social hierarchies and systems rooted in upholding white supremacy:
As Harlan saw it, the “white race,” as long as it “remains true” to the “principles of constitutional liberty,” did not need Jim Crow. It would remain “the dominant race” “in prestige, in achievements, in education, in wealth, and in power.” The colorblind Constitution would do as much as legal segregation to sustain supremacy, without the risk to order or international prestige.
More important, to read Harlan’s dissent in full is to see why it was so readily embraced in the age of opposition to efforts to redress racial inequality and past injustice. As Harlan knew, a colorblind Constitution could do as much or more to preserve a hierarchical and unequal society as laws designed for that purpose.