[by Rich Ford]
Here’s a take on
and words left unsaid: Justices Roberts’ and Alito’s position in
is perfectly consistent with a strict and rigorous colorblindness interpretation of the equal protection clause– i.e. the same position they both adopted last term in
Parents Involved in Community Schools v. Seattle
. The equal protection clause is now as likely, if not more likely, to block race conscious efforts to remedy racial injustice as it is to block racial discrimination as conventionally understood. And so ironically, making it difficult to establish an equal protection violation– once a conservative position–may soon be in the way of conservative efforts to reverse and prohibit race conscious remedial policies. So, if the Court can parse the record for evidence of discrimination in preemptory strikes can it also, say, parse the record for evidence of race consciousness in a selective university’s admissions decisions or a local government’s decision to award a contract to a minority owned business? This isn’t to say their positions were cynical and strategic, but Supreme Court Justices do decide cases with weight of precedent in mind. I’m just suggesting that the ideological terrain of equal protection jurisprudence is trickier than it once was and it may be that we’re simply looking a reorientation of conservatism in Roberts and Alito. Could this explain why so much was left unsaid?