The coming month will be a defining one for the Roberts Court. Over the next four weeks, the Supreme Court will decide high-profile cases about affirmative action (Fisher v. University of Texas), the constitutionality of the Voting Rights Act (Shelby County v. Holder), and marriage equality (Hollingsworth v. Perry and United States v. Windsor).
Each of these cases will be huge; together, they offer the justices the opportunity to put their stamp on the law of equality for decades to come. The precedents set in these cases will reverberate for years, shaping the meaning of the Constitution’s promise of equality for all persons.
The key question is whether the Roberts Court will be able to produce a coherent vision of the Constitution, true to its text and history, which explains the results across these landmark cases.
The basic history at the heart of these cases is clear.
First, the guarantees of the 14th Amendment are universal. While the 14th Amendment was written in the aftermath of slavery, it protects all persons. In guaranteeing equal protection of the laws to all persons, the 14th Amendment was designed to guarantee equal rights and forbid arbitrary discrimination against any group or class of persons.
Second, this broad affirmation of equality was no accident. The Framers of the 14th Amendment considered and rejected proposed language that would have forbidden racial discrimination by the government and nothing else.
Far from establishing a constitutional ban on the use of race by the government, the Framers rejected proposals that would have forbidden racial classifications by the government and opted to write a sweeping guarantee of equal rights that protects all Americans, whether black or white, man or woman, heterosexual or gay.
Indeed, the Framers recognized that, after two centuries of state-sponsored slavery, the government had to take race into account in order to foster equality.
Third, the Framers of the 14th Amendment made a structural change in the powers of the federal government, giving Congress the power to protect fundamental rights and enforce the Constitution’s new command of equality under the law. Cementing this change, the 15th Amendment gave Congress the power to protect the right to vote free from racial discrimination.
This text and history should be at the core of the arguments in these cases, but they were basically missing in action when these historic cases were argued this fall and spring.
On the right, the court’s conservatives touted the idea that “the Constitution is color-blind” as the central meaning of the 14th Amendment.
Guided by Chief Justice Roberts’ view that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” the five conservative justices, after the oral argument in Fisher, seemed poised to strike down the University of Texas’ modest use of race in choosing a diverse student body, a ruling that would make a sea-change in the law that could affect universities across the nation.
The colorblindness theory is also at the heart of the conservative case against the Voting Rights Act. As Justice Scalia memorably put it during the Shelby County argument, the court had a constitutional responsibility to intervene to prevent “perpetuation of racial entitlements.”
Finally, it explains the basic conservative position, espoused most forcefully during oral argument in Perry by Chief Justice Roberts and Justice Scalia, that the 14th Amendment permits states to prohibit same-sex marriage. In their view, the 14th Amendment is primarily a guarantee of racial equality, therefore it permits states to deny to gay men and lesbians the right to marry, one of our most cherished fundamental rights, largely because states have, for a long time, had marriage laws that discriminated against gay men and lesbians.
However, the conservative justices have no answer to the basic, incontrovertible fact that the Framers of the 14th Amendment wrote the Equal Protection Clause as a broad guarantee of equality for all persons and not as a flat ban on the use of race by the government.
Indeed, as the court’s conservatives have refused to recognize, the Framers of the 14th Amendment enacted the nation’s very first affirmative action programs. The universal equality of all persons under the law, not colorblindness, is what drives the 14th Amendment.
The court’s liberal justices could have asked questions during oral argument to make these points central to the case.
For example, in Fisher, they could have asked Fisher’s attorney to square his argument with the fact that the Framers of the 14th Amendment—the originators of affirmative action—recognized that the government may use race to foster equality.
In Perry, they could have put the text’s broad guarantee of equality for all persons front and center, making the point that a history of discrimination does not make discrimination constitutional.
In Shelby County, they could have forced the Alabama county challenging the Voting Rights Act to own up to the fact that the Constitution expressly grants Congress the power to prevent racial discrimination in voting.
But they did not. Instead, by and large, they focused their attention on the specifics of the cases and the court’s past precedents. This basic posture left them on the defensive, particularly in a case, like Fisher, where the conservatives are intent on changing the law. Thus, in Fisher, when Chief Justice Roberts and others made powerful arguments attacking the concept of “critical mass” at the heart of the court’s past precedents permitting universities to use race to achieve diversity, the court’s liberal justices had little to fall back on.
The end result was that the court’s progressive justices missed an opportunity to show that the Constitution—the document as opposed to the doctrine—was very much on their side in these landmark cases.
While the core principles at the heart of the 14th Amendment are clear—universal equality of all persons; the modest use of race to foster equality; and congressional power to protect fundamental rights—the court’s case law is, in places, more muddled, providing an opening for conservatives on the Roberts Court this term to rework, reshape, or even abandon longstanding prior rulings.
The test for both sides in these critical cases is whether their opinions can be squared with the Constitution’s first principles when it comes to the meaning of equality.
Doug Kendall is founder and president and David H. Gans is director of the Human Rights, Civil Rights, and Citizenship Program of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history.
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