Our Colorblind Constitution | Center for Equal Opportunity

In the Japanese Relocation Cases during Word War II, Chief Justice Stone observed, “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”

That remains one of the best statements of colorblind law ever. Stone went on to address its reach (application) during the war:

“The adoption by government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant.”

I like some of those locutions: by their very nature odious, may menace that safety, not wholly beyond the limits of the Constitution, is not to be condemned merely because . . . And then here is Law Professor Andrew Kull, author of The Colorblind Constitution, commenting:

“There is, realistically, no constitutional guarantee that is not subject to qualification if a majority of the Court conceives the country faces imminent peril. If racial distinctions are “irrelevant” and therefore inadmissible in all but such extreme circumstances as “the crisis of war and of threatened invasion,” the Constitution may fairly be described as colorblind.”

Or as colorblind except in war time. Or as colorblind except during a prison break. But no other exceptions should be carved from colorblind law. Or if they should be, it would be on account of some other national emergency. And diversity ain’t it — notwithstanding the Supreme Court’s 2003 decision in Grutter v. Bollinger, which declared it to be a “compelling” government interest.”

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In his 2013 book Understanding Clarence Thomas, Ralph Rossum notices Grutter’s well, achievement. “Until Grutter, the only governmental use of race that a majority of the Court had held could survive strict scrutiny was remedying the effects of past discrimination.” This was a very narrow exception to the rule that all race-based classifications are unconstitutional, and it was also “time bound—once the injury to the actual victims of discrimination was remedied, the justification to classify by race ended.” But in Grutter added “a broad and open-ended justification for governmental uses of race-diversity.”

In her opinion O’Connor praised the benefits of diversity in not only educational settings but also the arenas of business, the military, and politics. The skills needed in today’s increasingly global marketplace, she said, “can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”

With respect to the military, a highly qualified, racially diverse officer corps is essential to its ability to fulfill its principal mission to provide national security. And as for politics, she added, that in order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. And, said O’Connor, “this justification, in principle, is not bound; the benefits of diversity will continue indefinitely.

O’Connor must wonder about herself. She accepted the diversity rationale, which will justify student body diversity and its educational benefits indefinitely. But she also called for the termination of diversity. Maybe this explains why rumors abound about her interest in seeing Grutter overruled.

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