Equal protection law today is divided. When minorities challenge laws of general application and argue that government has segregated or profiled on the basis of race, plaintiffs must show that government acted for a discriminatory purpose, a standard that doctrine has made extraordinarily difficult to satisfy. In discriminatory purpose cases, the ways that citizens experience state action is not constitutionally significant. By contrast, when members of majority groups challenge state action that classifies by race – affirmative action has become the paradigmatic example – plaintiffs do not need to demonstrate, as a predicate for judicial intervention, that government has acted for an illegitimate purpose. Strict scrutiny doctrine imposes restrictions on affirmative action that expressly take into consideration the ways citizens experience state action.
Equal protection cases appeal to Brown v. Board of Education and the special harms that racial classifications inflict to justify this divided framework of review. These appeals to Brown function much like appeals to Martin Luther King; they imbue claims about civil rights with foundational authority. But the divided equal protection framework that today governs claims of discrimination was not “in” Brown or Loving v. Virginia. It was forged in decades of conflict over the civil rights project, as judges invoked precedents of the civil rights era, first, to justify new forms of judicial deference in reviewing minority claims of discrimination and, then, to justify new forms of judicial scrutiny in reviewing claims of discrimination brought by whites.
This Foreword demonstrates how a body of constitutional law that began in the aspiration to protect “discrete and insular minorities” has been profoundly transformed by the conflict that enforcing equal protection provokes. It shows that modern discriminatory purpose and strict scrutiny law emerged, not in the era of Brown, but decades later, in the desegregation and affirmative action debates of the late twentieth century, as the Court changed constitutional law in response to resistance the civil rights project aroused. As importantly, I show how these changes divided equal protection into two branches of doctrine: one branch of equal protection ignores citizens’ experience of law and the other is deeply concerned about it. Reading doctrines of discriminatory purpose and strict scrutiny in relation to the desegregation and affirmative action conflicts they address – rather than the early civil rights precedents they cite – explains why equal protection divided into two racially marked branches that demonstrate such different solicitude toward citizens’ expectations of fairness. At the same time, this reading identifies forms of reasoning in the cases that could be oriented in new directions by a Court that cared about protecting “all persons” and fashioned a body of equal protection law that was again responsive to the concerns of minority groups.
The differences in empathy that have divided equal protection law can be seen within and across the closely divided constitutional equality decisions of the Supreme Court’s 2012 Term. The race cases of the Term consolidate and extend the changes in equality law this Foreword charts. The Court’s affirmative action decision in Fisher v. University of Texas at Austin renders ordinary what are in fact remarkable, long-term shifts in judicial oversight of equal protection claims. Fisher illustrates the equality docket of a Supreme Court that addresses disparate treatment by race in affirmative action programs without addressing minority claims of racial profiling in enforcement of criminal and immigration law. The form of empathy that leads the Court to focus equal protection scrutiny on affirmative action rather than racial profiling shapes the Court’s unprecedented decision to strike down a key provision of the Voting Rights Act of 1965 in Shelby County v. Holder. Shelby County interprets equality law with solicitude for Americans who claim they have been injured by laws that protect the rights and opportunities of minorities.
Empathy of a very different kind guides the Court’s interpretation of equal protection in the sexual orientation cases of the Term. Like the race cases, the same-sex marriage cases, United States v. Windsor
and Hollingsworth v. Perry, express understandings forged in debates that have divided the nation for decades. A sharply divided Supreme Court has now intervened in the marriage equality debates – in minority-protective ways. In this respect, Windsor’s divergence from the race decisions of the Term could not be more striking. For reasons that reflect differences in the debates – or simply in the Court’s composition – the marriage decisions of the 2012 Term model minority-protective judicial review of a sort that the Supreme Court no longer provides racial minorities. Windsor invites speculation on how American law might grow if an appointment led to a Court willing to provide racial minorities protection of this kind.