United States v. Windsor
Hollingsworth v. Perry
Shelby County v. Holder
Fisher v. University of Texas
The Equal Protection Clause of the Constitution, adopted three years after the Civil War as part of the Fourteenth Amendment, was designed principally to protect emancipated slaves from states that would deny their newly gained status as free and equal citizens. Yet in the Supreme Court this term, African-Americans were the big losers, while the winners were groups that the clause’s authors would not have imagined they were protecting at all: (1) southern states with a documented history of race discrimination; (2) whites challenging state efforts to help blacks by means of affirmative action; and (3) same-sex married couples.
This paradoxical departure from the Equal Protection Clause’s “original” purpose is not in itself a ground for criticism. Like much else in the Constitution, it was written in broad, general terms for the ages. It was not narrowly limited to the specific problem to which it was addressed at the time. It guarantees “equal protection of the laws” to all, not just to blacks. Through extended political struggle and evolving judicial interpretation, the scope of its protection has grown, embracing, among others, women and foreign nationals. So the fact that the Court, on the last day of its term, recognized the equal dignity of same-sex married couples should be seen as simply another important step in the inexorable development of our nation’s constitutional commitment to equality.
The Court’s concurrent denial of important protections to African-Americans, however, is of grave concern—not simply because it parts company with the Fourteenth Amendment’s original intent, but more fundamentally because it underscores that a majority of the Court believes that the time for legal measures designed to redress the nation’s long history of subordinating black citizens is past, and that the way forward is through mandated color-blindness. As Chief Justice John Roberts put it in 2007, invalidating a program designed to integrate public schools, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” For five of the Court’s justices, it’s as simple as that.
Only such a worldview could impose on states the same burden of justification when they seek to help African-Americans as when they seek to oppress them, as the Court has done in its decisions on affirmative action. And only such a worldview could lead the Court to elevate the “equal sovereignty” of states, a principle not even mentioned in the Constitution, over the voting rights of minority citizens—as the Court did this term in striking down the heart of the 1965 Voting Rights Act.* By imposing this view on the nation, the Court has not only refused to interpret the Equal Protection Clause as mandating measures to ameliorate racial inequality, but has used the clause to obstruct the states and Congress…
This article is available to subscribers only.
Please choose from one of the options below to access this article:
Purchase a print subscription (20 issues per year) and also receive online access to all articles published within the last five years.
Purchase an Online Edition subscription and receive full access to all articles published by the Review since 1963.
Purchase a trial Online Edition subscription and receive unlimited access for one week to all the content on nybooks.com.