Could the Supreme Court Be Signaling a Return to the Ideal of Colorblind Law?

Aristotle’s axiom “one swallow does not make a summer” suggests caution in anticipating large reverberations from a Supreme Court ruling last week. Yet the court’s unanimous affirmation of a principle that is commonsensical but now controversial might indicate its readiness to temper the racialization of American law and governance, to which the court has contributed.In 2019, a heterosexual Ohio woman, Marlean Ames, who had worked in a state agency since 2004, was denied a promotion for a job that went to a lesbian colleague with less experience at the agency and lesser academic credentials. Ms. Ames was subsequently demoted to a position involving a 40 percent pay cut, and her prior position was filled by a gay man.Ms. Ames filed a lawsuit saying she was discriminated against, in violation of Title VII of the 1964 Civil Rights Act, because of her sexual orientation. She lost in a district court and in her appeal to the United States Court of Appeals for the Sixth Circuit, which held that she had not demonstrated “background circumstances” (not defined, anywhere) to justify her suspicion of discrimination. This demonstration requires, the Sixth Circuit said, a member of a majority to show that her employer is “that unusual employer who discriminates against the majority.”The court heard this case not to decide the merits of Ms. Ames’s accusations but to consider her extra burden in making them. In Justice Ketanji Brown Jackson’s short — nine-page — opinion for the court, she noted that “disparate treatment,” meaning discrimination, claims generally rest on “circumstantial evidence,” but only members of a majority have the additional evidentiary burden of demonstrating “background circumstances.”Justice Jackson briskly held that Title VII draws no distinction between majority-group and minority-group plaintiffs. Rather, it concerns unlawfully hiring, discharging, or otherwise discriminating against “any individual” (Jackson’s emphasis).By stipulating protections for every “individual,” Congress “left no room for courts to impose special requirements on majority-group plaintiffs alone.” Justice Jackson quoted the court’s language in the 1971 Duke Power Company case: “discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed” (Justice Jackson’s emphasis).In Duke Power, however, the court greased the nation’s slide into laws that recognize, in order to privilege, groups. The court conceded that the company did not intentionally discriminate on the basis of race. It nonetheless was guilty of illegal discrimination because when making promotions it administered an aptitude test that had a “disparate impact” on groups: 58 percent of white candidates and 6 percent of Black ones passed.By creating an illegal discrimination of effects, severed from intentions, the court opened a path to racialist thinking and laws. And a racial spoils system based on the theory that disparate social outcomes should be blamed on “systemic” racism. So, racism will persist until “the system” — a.k.a., society — is dismantled and reassembled equitably, which might take a while.Such language — systemic injuries to certain (not all) minority groups — undermines a foundational American premise: that rights (and responsibilities) inhere in individuals. This has helped to create today’s simmering stew of grievances: the toxic binary of oppressors and oppressed, grievance groups versus groups aggrieved by being accused of complicity, even if unintentional, in oppression.Justice Jackson’s opinion focused, properly, on the narrow question of what Title VII requires and does not mandate. Justice Clarence Thomas, however, in a 14-page concurrence (joined by Justice Neil M. Gorsuch) deplored “problems that arise when judges create atextual legal rules and frameworks.”By now, much constitutional law is “judge-made”: extracted from, not found in, constitutional or statutory texts. Including some doctrines that conservatives rightly applaud, such as the “major questions” doctrine: Executive agencies should not exercise powers of vast economic and political significance unless Congress has clearly and explicitly authorized this. Other examples: Miranda warnings (by police), the exclusionary rule (excluding illegally seized evidence from trials), and the nondelegation doctrine (limiting Congress’s ability to delegate to executive agencies essentially legislative powers).The “background conditions” requirement for majority plaintiffs is, however, unambiguously discrimination mandated as social policy, implausibly tickled from Title VII language. How will Justice Jackson apply her “individuals, not groups” reasoning when, soon, the court announces its ruling in a case from Louisiana under the 1965 Voting Rights Act?The core issue there is: Does a map of six congressional districts, drawn after the 2020 Census, constitute “vote dilution” that denies a particular group, Black voters, a “meaningful opportunity” to elect candidates of their choice. No such language is in, or implied by, the Voting Rights Act, or is compatible with the Constitution’s guarantee of equal protection of the laws for individuals.The Washington Post

Could the Supreme Court Be Signaling a Return to the Ideal of Colorblind Law?

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