TO REALLY UNDERSTAND what the majority did in Callais, it’s worth taking a trip back to 1896 when, in Plessy v. Ferguson, a different group of justices declared racial segregation in public facilities constitutional so long as the separate facilities were deemed “equal.” The lawsuit arose when a black man, Homer Plessy, was arrested for sitting in a whites-only train car in Louisiana, in violation of Louisiana law. He sued under the Equal Protection Clause of the Fourteenth Amendment, which at that point was only twenty-eight years old, one of the three post-Civil War Amendments designed to constitutionalize the humanity of a category of people who had been legally enslaved and degraded for hundreds of years in the United States simply by virtue of their skin color.
In a famous dissenting opinion, Justice John Marshall Harlan condemned the nation’s systematic degradation of individuals on the basis of race: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”
Fast-forward to 2023, when in Students for Fair Admissions (SFFA) v. Harvard, a 6–3 majority declared consideration of race in college applications unconstitutional. In his opinion, Chief Justice John Roberts underscored “Justice Harlan’s view in his lone dissent in Plessy” that “our Constitution is color-blind.”
Bear in mind that Harlan was dissenting from a grotesquely racist and shameful ruling, one ultimately rejected in the 1954 landmark case Brown v. Board of Education, in which a unanimous Court declared racial segregation in education unconstitutional. Chief Justice Earl Warren wrote for the Court that “to separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,” depriving black children of equal protection of the laws guaranteed by the Fourteenth Amendment.
In her dissent to the SFFA affirmative action ruling, Justice Sonia Sotomayor correctly chided the majority for “distort[ing] the dissent in Plessy to advance a color-blindness theory.” The majority had also thumbed its nose at history and the inescapable reality of slavery, despite its alleged devotion to “originalism” and “history and tradition” as the touchstone of modern constitutional interpretation. From Plessy, she wrote, “emerged Jim Crow—a system that was, as much as anything else, a comprehensive scheme of economic exploitation to replace the Black Codes, which themselves had replaced slavery’s form of comprehensive economic exploitation.” (Black codes were post-Civil War laws enacted to restrict the rights of newly freed African Americans.)