When John G. Roberts Jr. was a young lawyer in the Reagan administration, he repeatedly invoked the view that the Constitution is “color-blind” and forbids the government to make decisions based on race, even to combat the effects of discrimination.
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Roberts spelled out that position in a 1982 memo before a meeting on school busing. “You should reiterate our commitment to the color-blind principle, and our commitment to seek more effective desegregation remedies than the failed experiment of busing,” Roberts wrote.
More than four decades later, the “color-blind principle” is rapidly becoming a pillar of the law, ushered in by the Roberts-led Supreme Court, particularly over the past few months. The rise in the notion of legal colorblindness undergirds the court’s historic rightward shift on civil rights issues, according to an analysis conducted by three legal scholars for The Washington Post.
The “colorblind Constitution” concept has been cited in at least four recent Supreme Court opinions, including the landmark cases upholding birthright citizenship and rolling back much of the 1965 Voting Rights Act.
In a case last month, the majority emphasized “our colorblind Constitution” in the first sentence of an opinion letting Alabama conduct its midterm elections with one, instead of two, majority-Black districts. It was the first time in history the court had cited the concept so prominently, according to legal experts.
“This is not a new debate — I think what’s new is the conservatives have a majority,” said Josh Blackman, a professor at the South Texas College of Law, who wrote in a recent article that the colorblind Constitution is now the “supreme law of the land.”
For conservatives who have long pushed it, describing the Constitution as colorblind reflects the obvious point that America’s founding document forbids dividing people by race.
Andrea Lucas, the Republican chair of the Equal Employment Opportunity Commission, said in an interview its adoption is long overdue. Lucas has regularly invoked the language as her agency targets diversity, equity and inclusion programs at the nation’s largest companies.
It is “a reflection that the conservative legal movement has won the battle in a lot of ways that they’ve been working for 40 years to do,” she said.
Liberals say the Constitution’s authors, on the contrary, explicitly addressed race. Provisions like the 14th Amendment — whose guarantee of “equal protection of the laws” was adopted after the Civil War — were consciously intended to remedy racial inequality, they say.
“As a matter of fact and of history, our Constitution is not colorblind,” said Sherrilyn Ifill, former head of the NAACP Legal Defense and Educational Fund. “The court is essentially making up a doctrine that does not exist and that is not supported by the text or the history of the Constitution.”
Legal analysts say the Supreme Court’s growing embrace of the phrase could hasten the end of race-conscious policies in education, housing, employment, redistricting and other areas.
Trump administration officials have seized on the language.
“‘Our colorblind constitution.’ There it is, in a Supreme Court opinion without objection from any dissenter,” cheered GianCarlo Canaparo, a deputy assistant attorney general, in a social media post shortly after the Alabama opinion.
Soon after, the Justice Department issued a memo arguing that EEOC regulations on affirmative action and disparate impact should be changed because they are not “colorblind.” It likewise invoked “our colorblind Constitution” in saying that preferences for “socially disadvantaged” groups in federal agriculture programs violate the Constitution.
The debate often boils down to whether it’s acceptable to use racial remedies to cure racial injustice. Civil rights leaders contend that after centuries of slavery, segregation and Jim Crow — often enshrined in law — it is irrational to claim the American legal system should be blind to the country’s racial injustices.
Justice Ketanji Brown Jackson has argued in detail that the effects of slavery and Jim Crow continue today, as evidenced by vast gaps in educational opportunities, income and medical care between Black and White Americans.
Ifill, currently a law professor at Howard University, said the decades-long quest by conservatives to implement a colorblind vision of the law reached an “apex” this year. “What it has done is it has completed a rhetorical project that a number of these justices have been set on for some time,” Ifill said.
Conservatives respond that policies like affirmative action and race-based gerrymandering do not remedy prejudice, but rather perpetuate it by bolstering racial stereotypes and by discriminating against a different set of disfavored groups, such as White people who took no part in the eras of slavery and Jim Crow.
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That view is embodied in a much-quoted sentence from a 2007 opinion by Roberts striking down race-conscious placements in Seattle grade schools: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
As a young Justice Department attorney, Roberts’s advocacy for legal colorblindness reflected the Reagan administration’s broad opposition to race-conscious measures.
“We want a colorblind society — a society that, in the words of Dr. [Martin Luther] King [Jr.], judges people not by the color of their skin, but by the content of their character,” President Ronald Reagan said in a 1986 speech opposing quota-based affirmative action.
His administration attempted to revoke affirmative action requirements for government contractors and initially opposed Congress’s expansion of Section 2 of the Voting Rights Act, although Reagan ultimately signed it into law. (The Supreme Court this year walked back those amendments.)
But the Supreme Court did not always fully embrace the colorblind view. In a 1993 case involving race-based redistricting in North Carolina, then-Justice Sandra Day O’Connor wrote that the high court “never has held that race-conscious state decision-making is impermissible in all circumstances.”
That began to change after Roberts joined the court as chief justice in 2005. He wrote several decisions endorsing the colorblind principle’s reasoning, including his majority opinion in the Seattle case. In a 2006 opinion involving racial gerrymandering in Texas, Roberts wrote, “It is a sordid business, this divvying us up by race.”
Justice Clarence Thomas, who has served on the court since 1991, has likewise invoked the colorblind Constitution, using the language as far back as a 1994 opinion concurring in a judgment in a case involving voter dilution allegations.
The concept gained momentum in 2020, as the ascension of a new cadre of conservative justices appointed by President Donald Trump cemented a conservative majority on the court. It was most prominently advanced when the court in 2023 overturned affirmative action in admissions at Harvard University and the University of North Carolina at Chapel Hill, prompting a broad retreat of diversity, equity and inclusion initiatives.
As the justices increasingly introduced the colorblind Constitution into their opinions, they often cited its origin: a dissent against the infamous 1896 Supreme Court case Plessy v. Ferguson, which upheld racial segregation through the “separate but equal” doctrine.
In the dissent, Justice John Marshall Harlan attacked “separate but equal” as inherently discriminatory. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” Harlan wrote. “In respect of civil rights, all citizens are equal before the law.”
But in a significant shift last month, the court’s conservatives referred to the colorblind Constitution in a majority opinion without quoting Harlan — a first that legal experts said cements the principle as a core legal tenet.
The justices’ views are undergirded by their conflicting assessments of how far the country has come in eliminating racism.
In the court’s decision rolling back Section 2 of the Voting Rights Act, Justice Samuel A. Alito Jr. wrote that “vast social change has occurred throughout the country and particularly in the South.” Roberts made a similar point in a 2013 majority opinion invalidating a separate portion of the Voting Rights Act, writing, “Things have changed dramatically.”
Kagan, in dissent, shot back that advancements in Black voter participations are largely because of the Voting Rights Act — but “it is a separate question whether those gains will endure once the Act’s protections are gone.”
The dispute erupted anew last month when the court upheld the guarantee of birthright citizenship in the 14th Amendment and affirmed that almost everyone born on U.S. territory is an American citizen.
While joining the majority opinion, Jackson lamented that the colorblind Constitution has “loomed large” in the court’s interpretation of the amendment, adding in a footnote that there “are myriad ways in which the Court’s adherence to color-blindness is mistaken.”
She added, “The Fourteenth Amendment is not color-blind; rather its core principle is that our Nation does not tolerate racial caste. … Our Nation did not undergo something as profound and world-shifting as ‘Reconstruction’ for naught.”
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