A Jurisprudential Reckoning: How Conservatives Use “Colorblind” Ideology to Obstruct Racial Justice

November 19, 2021

To fulfill America’s promise of multiracial democracy, our government must reckon with our legacy of white supremacy and take assertive action to address centuries of systemic racism. But the path to achieving racial justice today—and sustaining our democracy—must include a sobering conversation about how our courts often obstruct racial progress.

For years, the right has successfully dominated the judiciary, packing the courts with judges who have pushed a conservative judicial philosophy in order to thwart government action and implement their broader political agenda. Today, this has culminated in the judiciary’s insidious undoing of hard-fought civil rights-era advances toward racial justice. 

The dominant race jurisprudence we see today is one steeped in “colorblindness,” a judicial philosophy which holds that—barring a limited set of circumstances—almost all laws that draw distinctions between racial groups are constitutionally impermissible. In its most extreme form, colorblind ideology asserts that all instances of distinguishing between racial groups are equally reprehensible; under this view, affirmative action policies are just as morally and legally repugnant as Jim Crow segregation.

Although colorblind ideology is used by conservatives today as a tool to impede racial justice, this was not always the case. By the middle of the 20th century, the civil rights movement had ushered in a jurisprudential shift, largely rejecting de jure segregation. Racial justice leaders and movement actors won monumental legal victories, most prominently in Brown v. Board of Education, which overruled Plessy v. Ferguson’s “separate but equal” doctrine, and held that segregation in public schools was unconstitutional. The Civil Rights Act and Voting Rights Act were passed. Courts began striking down laws that made distinctions between racial groups in order to uphold white supremacy. Echoing Justice John Marshall Harlan’s dissent in Plessy (“Our Constitution is colorblind, and neither knows nor tolerates classes among citizens”), some of the rhetoric espoused by racial justice activists and jurists in this era was centered around colorblindness. These leaders advocated for a vision in which our society truly transcends, once and for all, the racism embedded in our systems, institutions, and collective psyches.

But backlash to racial progress was immediate. Understanding that it was becoming politically unacceptable to openly advocate for segregation, conservatives took the aspirational ideal of colorblindness and purposefully interpreted it literally. Rather than acknowledging deeply entrenched systemic racism, many claimed that they no longer “saw race” at all. They insisted that laws aimed to remediate centuries of state-sanctioned racism amounted to “reverse racism.”

What started as backlash to the civil rights movement has become the jurisprudential norm. Conservative weaponization of “colorblindness” has undermined progress, often paving the way for right-wing attacks on the right to vote, affirmative action, and other policies aimed at achieving racial equity. This becomes especially problematic when adopted by Supreme Court justices. By veiling their agenda against racial progress behind claims that the Constitution limits—or in some cases completely forbids—race-forward government action, statutory and regulatory efforts to dismantle racist systems are stymied at the root.

At the same time, the right endorses a narrative that the judiciary is an apolitical, neutral branch of government, and that interpretations of the Constitution depend not on political agendas, but on sterile, legal understandings that are wholly divorced from current events and the personal beliefs of the justices. Conservatives often criticize liberals for engaging in judicial activism by overstepping their aspirational role as neutral interpreters of the law and instead “legislating from the bench.” Judging by their actions, however, conservatives themselves engage in the very behavior they so vehemently oppose.

The Court’s cases on affirmative action provide a clear example of conservative backlash to racial progress. Affirmative action has been used as a tool to alleviate some of the negative impacts of past and present societal discrimination against people of color. Affirmative action policies can aid desegregation efforts in the workplace and in higher education, while also providing an avenue for social and economic mobility for workers and students of color.

But rather than use affirmative action as a tool to remediate past injustices perpetrated against people of color, the Court has largely chosen to interpret affirmative action programs as a method of institutionalizing “reverse discrimination.” This line of reasoning buys into the false narrative that actions to advance racial equity for marginalized communities are actually an assault on white people. By arguing that the Constitution is “colorblind,” conservative justices largely reject arguments that a history of societal discrimination—even one dominated by slavery, Jim Crow, and other forms of race-based civil exclusion—justifies policies that candidly attempt to remediate that history.

Conservatives claim that their interpretative calculus is strictly based on judicial canons of construction, devoid of any and all political or moral beliefs of the justices. But interpreting the Constitution as severely limiting or flatly prohibiting measures aimed at remediating racialized oppression runs afoul of the very purpose of certain constitutional amendments—to end the subjugation of Black people in the United States and achieve racial justice.

To realize meaningful progress toward racial equity, progressives must explicitly confront the right’s efforts to enforce their antidemocratic agenda through the judiciary. Judges must interpret the Constitution not as a document that ignores oppression but as an instrument that protects the rights of all Americans. It is crucial that we adopt a race-conscious jurisprudence that reckons with our history and present-day realities—one that not only acknowledges the state-sanctioned violence perpetrated against people of color, but that allows for democratic processes to effectively remedy these injustices. Implementing a race-conscious jurisprudence will require structural reform. Otherwise, even the most sweeping, race-forward legislation will fail to make the long-lasting, structural changes necessary to achieve racial justice in America.