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Ruling Away From America's Second Founding By David H. Gans
Over a century ago, when the Supreme Court helped usher in Jim Crow, Justice John Marshall Harlan took his colleagues to task for betraying the promise of Reconstruction. Dissenting in Plessy v. Ferguson, Harlan insisted that “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
In the Supreme Court term that just ended, the Roberts court turned Harlan’s anti-caste reading on its head. This court read the 14th Amendment, time and again, as the justification to lock in racial subordination and to immunize bias and prejudice from scrutiny. A big part of the story of the term that just ended is that this conservative supermajority will give the Reconstruction Amendments the stingiest reading possible.
As this term demonstrated, invocations of colorblindness are increasingly a one-way ratchet deployed not to ensure equality but to annul efforts to create equality and undo state-sponsored racial subordination. The centerpiece of this is Louisiana v. Callais, in which the Roberts court determined, in a 6–3 vote, that Louisiana had violated the 14th Amendment’s guarantee of equal protection by drawing a race-conscious map. Never mind that this map was intended to redress the state’s prior gerrymander, which had packed and cracked communities of color, diluting their voting strength. In the majority’s twisted logic, remedying discrimination is itself discrimination.
In the name of colorblindness, Callais made three huge legal changes. First, it scrapped what was left of the Voting Rights Act, reading one of the act’s most important features—the ban on discriminatory results—out of the statute. Second, it hollowed out Congress’ power to enforce our constitutional promise of racial equality at the polls, insisting that Congress lacked the power to do more than prohibit purposeful racial discrimination. Third, it blessed the power of states to gerrymander communities of color and cement white political control, elevating the authority of states to engage in partisan gerrymandering into a right that trumps the VRA’s protections for equality.
In the Supreme Court term that just ended, the Roberts court turned Harlan’s anti-caste reading on its head. This court read the 14th Amendment, time and again, as the justification to lock in racial subordination and to immunize bias and prejudice from scrutiny. A big part of the story of the term that just ended is that this conservative supermajority will give the Reconstruction Amendments the stingiest reading possible.
As this term demonstrated, invocations of colorblindness are increasingly a one-way ratchet deployed not to ensure equality but to annul efforts to create equality and undo state-sponsored racial subordination. The centerpiece of this is Louisiana v. Callais, in which the Roberts court determined, in a 6–3 vote, that Louisiana had violated the 14th Amendment’s guarantee of equal protection by drawing a race-conscious map. Never mind that this map was intended to redress the state’s prior gerrymander, which had packed and cracked communities of color, diluting their voting strength. In the majority’s twisted logic, remedying discrimination is itself discrimination.
In the name of colorblindness, Callais made three huge legal changes. First, it scrapped what was left of the Voting Rights Act, reading one of the act’s most important features—the ban on discriminatory results—out of the statute. Second, it hollowed out Congress’ power to enforce our constitutional promise of racial equality at the polls, insisting that Congress lacked the power to do more than prohibit purposeful racial discrimination. Third, it blessed the power of states to gerrymander communities of color and cement white political control, elevating the authority of states to engage in partisan gerrymandering into a right that trumps the VRA’s protections for equality.
https://slate.com/news-and-politics/2026/07/roberts-court-america-race-backward.html]