Last June, in a case that effectively guaranteed one of Alabama’s Black Democratic members of Congress would be replaced by a white Republican, the Supreme Court used a single word that delighted movement conservatives and made many longtime civil rights advocates want to weep. 

In the first sentence of its decision in Allen v. Milligan (2026), most of the justices concluded that there is a tension between the federal Voting Rights Act (VRA), the landmark law that ended Jim Crow-era race discrimination in elections, and “our colorblind Constitution.” All three of the Court’s Democratic members dissented in Allen.

The word “colorblind” might not suggest, to many casual observers, the gravity of what the phrase means, how much power it has to roll back civil-rights reforms enacted in the 1960s — and the major ideological change ushered in by this Supreme Court. Proponents of colorblindness argue that any law that draws distinctions on the basis of race, for any reason whatsoever, is equally repugnant under the Constitution. Under this theory, laws like the Voting Rights Act and similar efforts to lift up historically disadvantaged racial groups are legally indistinguishable from the very kind of Jim Crow discrimination that the VRA sought to abolish. 

It’s an idea that cuts across the Roberts Court’s race decisions, including its decisions abolishing affirmative action in nearly all universities, its decisions undercutting public school integration, and its decisions dismantling the VRA. Under the colorblind thesis, the Constitution sees a modern law intended to guarantee some Black representation in Congress as precisely as intolerable as a 19th-century law forbidding Black people from voting at all. 

As Chief Justice John Roberts summarized colorblindness in a 2007 opinion, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

And lest there be any doubt, the Court’s commitment to this project extends far beyond a few pithy quotes. Just over one month before Allen, in Louisiana v. Callais (2026), the Court’s Republican majority imposed colorblindness on the laws governing US elections, effectively killing a 1982 amendment to the VRA — which was signed by President Ronald Reagan — in the process. Three years earlier, in Students for Fair Admissions v. Harvard (2023), the same justices implemented colorblindness in college and university admissions, ending affirmative action in nearly every institution of higher education in the country.

Allen’s reference to “our colorblind Constitution” confirms the breadth of this project, because if the colorblind thesis is imposed by the Constitution itself, that means that judges must strike down any law or government program that takes account of race, whether in hiring, federal contracting, university admissions, elections, or the military. (Though it is notable that the Harvard decision did dodge the question of whether service academies such as West Point may take account of race in admissions, after military leaders raised concerns that a racially diverse enlisted corps would resent being commanded by a corps of officers who do not resemble them.)

This shift in the Court’s approach to race cases is likely to lead to a purge of programs intended to benefit historically disadvantaged groups. Armed with precedents like Callais and Harvard, pro-colorblindness advocacy groups have filed a wide range of lawsuits challenging scholarships for minority youth, targeting groups that promote minority-owned businesses, and even trying to prevent universities from conducting surveys of Black students.

The GOP’s hard-right turn against laws like the Voting Rights Act is a recent development. Callais, after all, neutralized a law signed by Reagan, a Republican. An earlier Supreme Court case invalidating much of the VRA, Shelby County v. Holder (2013), struck down an extension of the VRA that was signed by Republican President George W. Bush. A significant faction within the GOP has fought against the VRA since the Nixon administration, but they repeatedly lost in the two elected branches of government and only prevailed after they captured an unelected judiciary.

But the victory of the “colorblind” theory in the conservative legal movement is also the result of decades of work. It is largely a story of how a once-fringe faction within the Republican Party took over both that party and then the Supreme Court. And, now that it controls the Court, that faction seeks to lock its approach to racial questions in place forever.

The pre-Roberts Court’s approach to race

Proponents of the colorblindness thesis often trace its origins to Justice John Marshall Harlan, the only dissenter in Plessy v. Ferguson (1896), the Supreme Court’s infamous decision permitting racial segregation. “Our Constitution is color-blind,” Harlan wrote in that dissent, “and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

Yet, while Harlan was a racial progressive by the standards of late 19th-century legal elites, his views would offend nearly all modern-day Americans. The full context of Harlan’s famous “color-blind” line suggests that he rejected segregation, at least in part, because he viewed it as unnecessary to maintain white supremacy. “The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power,” Harlan began the very same paragraph that includes the line about colorblindness. “So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”

The truth is that modern legal arguments regarding the Constitution’s racial equality provisions did not fully take shape until late in the 20th century. The Court’s landmark school desegregation decision in Brown v. Board of Education (1954) spoke only of a right to racially integrated public schools: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place.” After Brown, the Court handed down a series of unexplained orders affirming lower court decisions that struck down segregation at public beaches, municipal golf courses, parks and elsewhere. But many of these orders were just one sentence long, and they hardly answered the question of why segregation is unconstitutional outside of the public school context.

By the 1970s, legal scholars began to split between two competing theories of how the Constitution approaches race. The first theory, which Yale law professor Reva Siegel labels the “antisubordination” principle, contends that “it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups.” On this theory, Brown was correctly decided because the purpose of school segregation was to subordinate Black people, and the Constitution does not tolerate a racial underclass.

The other theory, which Siegel labels the “anticlassification” principle, simply declares that “government may not classify on the basis of race.” And thus any law that draws any distinction on the basis of race is constitutionally suspect, even if that law was enacted to undo the legacy of racism.

The Supreme Court of the 1970s and ’80s, however, did not divide into two neat camps. Every late 20th-century justice was at least a moderate proponent of Siegel’s anticlassification principle. While Justice Thurgood Marshall, for example, argued that the Constitution views laws which seek to “remed[y] the present effects of past racial discrimination” with less skepticism than it does laws that enforce white supremacy, he still would have subjected affirmative action and similar programs to “intermediate scrutiny,” which is the same test that courts apply to laws that discriminate against women.

Such laws are unconstitutional unless the government can provide an “exceedingly persuasive justification” for them.

Meanwhile, while a majority of the Court ultimately concluded that both Jim Crow-like laws and programs like affirmative action must survive the same exacting legal test — known as “strict scrutiny” — the Court also permitted at least some affirmative action programs to exist. The seminal case was Regents of the University of California v. Bakke (1978), which recognized that students from underrepresented racial groups bring “experiences, outlooks, and ideas” to the classroom “that enrich the training of its student body and better equip its graduates.”

And thus, if universities could not take some steps to racially diversify their student bodies, all of those students, including the white ones, would receive an inferior education.

The pre-Roberts Court, in other words, took a pragmatic approach to race cases that avoided drawing rigid lines or categorically declaring well-meaning programs intended to achieve racial equality off-limits. The justices of this era also understood that institutions outside of the Court often had far more expertise on how to foster a pluralistic society than nine lawyers in black robes.

Take Justice Lewis Powell’s opinion in Bakke, which said that “it is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation,” and which ultimately concluded that universities “must be accorded the right to select those students who will contribute the most to the ‘robust exchange of ideas.’” 

Powell was a white Southerner who, as chair of the Richmond, Virginia, school board, left office six years after Brown with only two of Richmond’s 23,000 Black children attending school alongside white students. But he was also humble enough to recognize that universities knew something about how to educate university students to succeed in a diverse nation that he and his fellow justices did not. And so he gave these universities some leeway to exercise that expertise.

Indeed, if anything, the current Court’s most defining feature is the complete absence of the very kind of humility that Powell showed in Bakke — especially on questions of race.

Writing colorblindness into the Constitution was one of Roberts’s top priorities as chief justice

John Roberts became chief justice of the United States in 2005. Less than two years later, he made his first big push to write colorblindness into the Constitution.

In a sharp break with earlier school segregation decisions, which concluded that public schools may require each school to have “a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole,” Roberts wrote that public schools are forbidden from voluntarily integrating themselves.

Parents Involved v. Seattle School District No. 1 (2007) involved two school districts, one in Seattle and another in Louisville, that allowed families to select which schools they wanted their children to attend. If more students chose a particular school than that school could accommodate, however, the districts gave a preference to children who would make their chosen school more diverse. The idea was that, since the districts had to come up with some way to determine who got to attend oversubscribed schools, it should do so in a way that fostered racial integration.

This was the case where Roberts declared that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Indeed, Roberts even wrote that these two districts’ attempt to integrate public schools was no less odious than Jim Crow segregation. “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” The school districts in Parents Involved, he claimed, asked his Court to “allow this once again — even for very different reasons.”

This is the essence of the colorblind theory of the Constitution. According to Roberts, the Constitution draws no distinction between white supremacist laws that segregate children by race, and an administrative scheme that tries to slightly increase the racial diversity of public schools.

It’s worth noting that Roberts’s views did not fully carry the day in Parents Involved, although a total of five justices agreed that the two school districts’ assignment schemes must be struck down. Justice Anthony Kennedy, who retired in 2018, wrote a separate opinion criticizing Roberts for going too far. “In the administration of public schools by the state and local authorities,” Kennedy concluded, “it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.”

But the Court’s overarching conclusion that racial integration can violate the Constitution still shocked the seniormost member of the Court. In dissent, Justice John Paul Stevens wrote that “it is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

A justice ready to take colorblindness from a fringe idea into the law of the land

Stevens, however, should not have been surprised that the new chief justice would reach such a conclusion, because Roberts had spent nearly his entire career fighting for the most absolutist version of the colorblindness thesis.

In 1982, President Reagan signed an amendment to the Voting Rights Act which clarified that state election laws that have a disproportionate negative impact on racial minorities violate the VRA, even if the plaintiffs cannot prove those laws were enacted with racist intent — this was the amendment that Roberts’s Court effectively repealed in its Callais decision. Reagan did so over the objections of a conservative faction within his administration, and one of the most vocal members of this faction was a young lawyer named John Roberts.

As a Reagan White House attorney, according to journalist Ari Berman, Roberts “wrote upwards of 25 memos opposing” the 1982 law. He “prepared administration officials for their testimony before the Senate; attended weekly strategy sessions; and worked closely with like-minded senators on Capitol Hill.”

Meanwhile, in an unrelated 1982 memo to Attorney General William French Smith regarding Smith’s upcoming meeting with the chair of the US Civil Rights Commission, Roberts urged Smith to “reiterate our commitment to the color-blind principle” in that meeting.

Though Roberts, and the conservative faction that he belonged to, lost the fight to get Reagan to veto the 1982 law, this movement was hardly a flash in the pan. The original Voting Rights Act of 1965 included a provision requiring states with a history of racist election practices to “preclear” any new election laws with federal officials to ensure that those laws would not prevent people of color from voting. This provision was initially set to expire in 1970, which meant that there was an internal fight within the Nixon administration over whether President Richard Nixon should sign an extension.

The conservative faction lost that fight too. They also lost similar fights over Voting Rights Act extensions in 1975, 1982, and 2006, all under Republican presidents. The 2006 extension, signed by President Bush, passed the House by a 390-33 margin, and it passed the Senate 98-0.

Ultimately, however, a conservative faction that was too weak to convince a single senator to oppose the 2006 extension had the last laugh. While this faction was only a minor player in Bush-era electoral politics, it dominated conservative legal groups like the Federalist Society and successfully pushed its own candidates for the Supreme Court. And so, in 2013, that Court struck down preclearance in Shelby County. Roberts wrote the opinion, which was joined by all of the Court’s Republicans.

The piecemeal death of the Voting Rights Act, in other words, wasn’t just the triumph of a once-impotent faction within the GOP over a voting rights law, it was a triumph over the democratic process itself. Time and time again, this faction lost its fight against the VRA in the two democratically elected branches of government. But none of that matters to a faction that controls the Supreme Court.

The colorblindness thesis is ahistorical

One irony of this fight over how the Constitution approaches race is that, while the most recent version of the Republican Party embraces colorblindness, it does so despite a lack of evidence that the Constitution’s racial equality provisions were originally understood to support this thesis. In Republican legal circles, it’s currently fashionable to tout originalism, the idea that the Constitution’s meaning was fixed at the time it was drafted or ratified, and that judges must interpret constitutional provisions in line with this original meaning. Several of the current justices, including Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, are outspoken originalists.

But within the Supreme Court it was Justice Thurgood Marshall, the great civil rights lawyer turned liberal justice, who first examined how the 14th Amendment, with its guarantee that no one will be denied the “equal protection of the laws,” was understood by the post-Civil War Americans who drafted and ratified it. And that evidence does not support colorblindness.

“The Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen’s Bureau Act, an Act that provided many of its benefits only to Negroes,” Marshall wrote in a separate opinion accompanying the Bakke decision. He also quoted members of Congress who complained during debates over this act that it gave Black people “favors that the poor white boy in the North cannot get,” as well as lawmakers who defended the “very discrimination” the Freedmen’s Bureau “makes between ‘destitute and suffering’ negroes and destitute and suffering white paupers.”

Seven years later, in 1985, legal scholar Eric Schnapper wrote a seminal paper fleshing out Marshall’s argument. Schnapper identified “eight Reconstruction measures establishing programs limited, in varying degrees, to blacks.” These laws included the Freedmen’s Bureau named by Marshall, as well as less significant laws offering targeted benefits to Black Americans. One law appropriated $15,000 “for the relief of freedmen or destitute colored people in the District of Columbia.” Another provided safeguards for Black veterans of the Union army.

For more than four decades, no justice even attempted to rebut Marshall and Schnapper’s originalist case for affirmative action. Indeed, the Court’s originalists were so silent that, in a 2013 article, conservative legal scholar Michael Rappaport complained that they have “not made any real effort to justify their affirmative action opinions based on the Constitution’s original meaning.”

Justice Thomas did finally attempt to rebut at least some of Marshall and Schnapper’s evidence in a concurring opinion in the Harvard case, but his response to the originalist case against colorblindness was quite feeble. Thomas’s opinion did “not contend that all of the individuals who put forth and ratified the Fourteenth Amendment universally believed” in colorblindness, and he claimed that the historical record is “sparse.” 

Regarding the Freedman’s Bureau, Thomas argued that the laws authorizing it “applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large,” even though “freedmen” is a category that consisted entirely of Black people. Regarding the other Reconstruction-era laws identified by Schnapper, Thomas discussed two of them.

Thomas acknowledged that “an 1866 law adopted special rules and procedures for the payment of ‘colored’ servicemen in the Union Army,” but anachronistically claimed that this law does not show that its 19th-century drafters rejected colorblindness because it may survive the strict scrutiny test that the Supreme Court devised during the 20th century. Thomas also conceded that “another law, passed in 1867, provided funds for ‘freedmen or destitute colored people’ in the District of Columbia,” but speculated that Congress “may have enacted the measure” — which again, used the words “colored people” — “not because of race, but rather to address a special problem in shantytowns in the District where blacks lived.”

All of which is a long way of saying that the colorblindness thesis is a far more recent invention than its most prominent proponents acknowledge. It was primarily devised, not by post-Civil War lawmakers seeking to undo the legacy of slavery, but by late 20th-century conservatives who opposed programs like affirmative action. 

If there was a serious originalist case for colorblindness, one of the justices would have made it in the 45-year period between Marshall’s opinion in Bakke and Thomas’s opinion in Harvard. And when Thomas finally did attempt to rebut the evidence gathered by Marshall and Schnapper, key prongs of his argument rested on anachronism and conjecture.

The fate of affirmative action and similar programs should be decided by elected officials, not by judges

In 2006, the people of Michigan voted to end affirmative action in that state’s university system. This ban sparked a far-fetched lawsuit claiming that it was somehow unconstitutional for the state to enact such a policy. As Judge Jeffrey Sutton wrote about this suit, the plaintiffs’ argument “transforms a potential virtue of affirmative action into a vice,” because “if there is one feature of affirmative-action programs that favors their constitutionality, it is that they grow out of the democratic process.” 

The question of what, if anything, should be done to racially diversify campuses — or to otherwise lift up communities that faced hundreds of years of enslavement, segregation, or other forms of government-sanctioned racism — is fraught. It is entirely reasonable to believe, as Chief Justice Roberts argued in Shelby County, that the same aggressive civil rights policies that were necessary to tear down Jim Crow in the 1960s are no longer needed two generations later. It is also reasonable to believe that, in a nation where the median white household earns over $36,000 more per year than the median Black household, that not enough is being done to close this gap.

Judge Sutton’s insight, in other words, should cut both ways. In a democracy, we are supposed to resolve these sorts of fraught questions through elections, not litigation. As the original history of the 14th Amendment shows, the United States did not ratify the post-Civil War constitutional amendments to prevent Harvard from diversifying its campus, and we certainly did not do so to prevent Congress from requiring former Confederate states to give some legislative representation to Black people. 

Similarly, proponents of colorblindness are more than capable of enacting their preferred policies without having to bypass democracy. Unlike the disenfranchised families who brought the Brown case, advocates of colorblindness do not need a judicial decree to advance their political goals — they can enact their preferred policies the same way that they did in Michigan’s 2006 election, by persuading voters that they are correct.

Nevertheless, by constitutionalizing colorblindness, the Republican justices have attempted to lock in place what could be, at most, a very transient electoral consensus around their preferred racial policy. If the American people decide, in the 2028 election or beyond, that the recent turn against laws like the Voting Rights Act was a terrible idea, they will have to replace the Supreme Court before they can reinstate those laws.

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