Equal Protection on the Docket

Brandon Bell/Getty Images

Rev. Jesse Jackson speaking at a rally for voting rights at the Alabama State Capitol in Montgomery, March 11, 2022

At least three times in its history, the Supreme Court has invoked the Constitution in order to frustrate efforts to protect the vulnerable. In the infamous Dred Scott case of 1857, the Court declared that the Constitution prohibited federal efforts to free slaves because doing so would violate their owners’ property rights—a decision that invalidated the Missouri Compromise and helped bring about the Civil War. In the early twentieth century, the Court repeatedly struck down state and federal protections for workers and consumers, deeming them violations of business owners’ constitutional rights of contract. The decisions were so unpopular that President Franklin Delano Roosevelt proposed packing the Court. And in 2013 the Court gutted the Voting Rights Act, removing its requirement that states with a history of discriminatory voter suppression submit voting rules and redistricting plans for administrative approval before implementing them. Runaway gerrymandering and voter suppression followed, eroding the integrity of our democracy. 

In its new term, which begins today, the Court has chosen to hear a series of cases that likewise invoke the Constitution as an obstacle to protecting equal rights, even as the country continues to reckon with its many legacies of discrimination. While the decision to overrule Roe v. Wade was, as I have written, egregiously wrong, it still allows the political branches to protect abortion. This term the Court is poised to go even further, by not only eliminating court-enforced constitutional protections but interpreting the Constitution as a barrier to other institutions’ efforts to achieve equality.

In a pair of cases that challenge affirmative action, at Harvard and the University of North Carolina, respectively, a group of would-be applicants asks the Court to declare that the Equal Protection Clause precludes any consideration of race in admissions. Since 1978 the Court has ruled that universities may consider race as one factor among many in a holistic assessment of applicants in order to obtain the educational benefits of diversity. That practice, now employed by nearly every college and university in the country, increases access to higher education for traditionally underrepresented groups, and helps schools assemble an integrated student body that enriches the educational experience of all. But the lawsuits ask the Court to reinterpret the Equal Protection Clause to require absolute colorblindness, meaning that universities may not consider race at all, even to promote integration and diversity.

Invoking the same principle of colorblindness, in Merrill v. Milligan Alabama has asked the Court to require proof of intentional racial discrimination to establish a violation of the Voting Rights Act—even though Congress explicitly amended the law in 1982 to reject such a requirement, and the Court has since then deemed such a showing unnecessary. As the law stands, states must avoid any practice that results in denying members of minority groups an equal opportunity to elect representatives of their choice. African Americans make up 27 percent of the Alabama’s population, but because of the state’s districting practices candidates favored by African Americans have never won more than one of its seven congressional seats (or 14 percent of the state’s delegation). A lower court unanimously found that Alabama’s 2021 redistricting plan likely violated the Voting Rights Act, including by dividing Black voters into separate districts while packing white voters into other districts where they are sure to be a majority. But if the Court overturns that ruling by requiring explicit proof of intent, it will become virtually impossible for members of minority groups to seek redress, not just in Alabama but across the country. 

In 303 Creative LLC v. Elenis, a Web designer claims that she has a First Amendment right to deny wedding website designs to same-sex couples because she objects to their marriages. Colorado law requires that once a business opens to the public it must serve all people equally. The Supreme Court has on at least five previous occasions rejected First Amendment challenges to such antidiscrimination laws, most recently in the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, the Court declined to adopt a baker’s argument that he had a right to refuse to make a wedding cake for a gay couple, reiterating that while the expression of philosophical and religious objections to same-sex marriage is constitutionally protected, “such objections do not allow business owners…to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” The Court did not resolve the issue, however, because it found that the Colorado commission exhibited religious bias in its enforcement of the law. 303 Creative LLC now asks the Court to allow businesses that provide expressive services (including, presumably, corporate photography studios, architecture firms, beauty salons, cake shops, and countless other businesses) to deny service on grounds of race, religion, sex, or sexual orientation if the business owner objects to the message they believe providing the service would send. 


In Brackeen v. Haaland, Texas, Louisiana, and Indiana, as well as would-be adoptive parents from those states, argue that the Equal Protection Clause precludes Congress from requiring states to give preference to families and foster homes from federally recognized Indian tribes when placing children associated with those tribes with adoptive families. Congress passed the Indian Child Welfare Act in 1978 to respond to what it described as “shocking” disparities “in placement rates for Indians and non-Indians.” One study cited by Congress found that in sixteen states, about 85 percent of Native American children were living in non-Native homes. The Court has long recognized that Congress can pass laws concerning Indian tribes and their members without violating equal protection, because such laws are based on political membership in a separate sovereign, not on race. Yet the challengers invoke the Constitution to invalidate the law’s efforts to support the tribes and their children.

Finally, in Moore v. Harper, Republican state legislators in North Carolina invoke the Constitution’s Elections Clause to defeat a state constitutional limit on partisan gerrymandering, the practice by which one party skews district lines to ensure that their supporters are able to elect more representatives than their numbers warrant. The North Carolina Supreme Court ruled that the Republican-controlled legislature’s map violates the state’s constitutional prohibition on partisan gerrymandering by splitting Democratic voters across Republican-majority districts. But the challengers argue that the federal Constitution gives state legislatures essentially unrestrained authority to set the rules for congressional elections, even if in doing so they violate their own state constitutions. Here again, longstanding precedent holds that state legislatures must act within the bounds of the state charters that create and empower them, but the Court has taken up an invitation to rule otherwise. 

In the 1930s, after FDR’s threat to pack the Court, the justices reversed course, allowing New Deal legislation protecting worker and consumer rights to stand. They explained that, as unrepresentative institutions in a democracy, courts should leave economic policy matters to the political branches. But at the same time, the Court asserted that it has an obligation to protect the democratic process itself and the rights of “discrete and insular minorities.” That approach, set forth in United States v. Carolene Products Co. in what has been called the most famous footnote in constitutional law, properly defines the responsibility of courts in our constitutional democracy. Yet this term, the Court’s conservative majority seems poised to turn that premise on its head, invoking the Constitution not to vindicate minority rights but to obstruct efforts by other institutions to protect those who need it most. 

The ACLU is counsel for the Black plaintiffs challenging Alabama’s congressional map in Merrill v. Milligan, and has filed or plans to file friend-of-the-court briefs in each of the other cases discussed in this article. The ACLU also represented the gay couple in Masterpiece Cakeshop.

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