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EQUALITY: ARE WE THERE YET?

On January 6, 2011, the Constitution of the United States was read aloud in the House of Representatives for the first time in American history. The text of our founding charter had been entered into the Congressional Record twice before, in 1882 and 1915, but never had it received spoken life. It was a marvelous scene to behold. As one observer described it, “Sentence by sentence, in accents that reflect the myriad districts that did not even exist when the document came into being, by women and African Americans whose full rights were not recognized at that time, the constitutional language fluttered through the chamber.”1

This was an act of political partisanship, a showy statement by the newly elected Republican majority in the House that respect for law had been restored to the Capitol. But its symbolic power was too great for such a minor purpose. Not even blatantly partisan motives could break the spell of destiny that overcame the chamber as centuries-old words of creation echoed in the halls of Congress.

The moment was marred, however, by the House’s decision to exclude sections of the Constitution that have since been superseded by amendment. This choice left whole swaths of America’s past unmentioned. The most glaring omission was Article I, Section 2—the infamous “Three-Fifths Clause,” which counted black slaves as “three fifths” of a person for purposes of deciding how many representatives in Congress each state received. The stormy days of Prohibition, an experiment that dramatically upended American life in the 1920s, also fell by the wayside.2

Derided by many as an inept concession to political correctness, this whitewashing of our basic charter betrayed a more profound error. It neglected the powerful truth expressed in Omar Khayyám’s deathless lines: “The moving finger writes, and having writ, moves on. Nor all your piety nor wit shall lure it back to cancel half a line, nor all your tears wipe out a word of it.”3 Every letter of the Constitution is part of our national experience. As the Civil War drew to a bloody close, America did not erase references to its sins. Rather, it enacted new amendments to forever banish slavery and promise “equal protection of the laws.” The very text of the Constitution admits abomination and strives toward redemption.4

Thus, when Justice Robert Jackson described the rejection of coerced orthodoxy as a “fixed star in our constitutional constellation,” he suggested a many-layered truth.5 The text of the Constitution, like the night sky, is composed of elements drawn from strikingly different eras in our history. Prohibition is imposed and repealed. Slavery is recognized, regulated, and abolished. The Fourteenth Amendment safeguards voting rights for “male[s] … being twenty-one years of age,” while the Nineteenth Amendment protects women’s suffrage and the Twenty-sixth Amendment lowers the voting age to eighteen. Article II provides that the runner-up in a presidential election becomes vice president—a rule altered by the Twelfth Amendment, passed after Thomas Jefferson was forced to serve under his rival, John Adams. Americans have not erased provisions that we have come to view as misguided; instead, we have added new amendments. As a result, the text tells a story. It may be only a small and selective part of our national tale, as we rarely amend the Constitution, but it’s a powerful vision in its own right.

This uneasy coexistence of past and present has always been a fact of American life. The Constitution is not a thing of levers and pulleys, a clockwork universe that mechanically drives us along a predetermined path to a preselected future. Nor is it a flash-frozen remnant of history, reaching out with its dead hand to make sure we stick firmly to a path marked in 1789. Rather, it’s the lived framework for an ongoing debate over how best to approximate our national ideals. It anchors us in the past, guides us in the present, and offers shared aspirations for the future.6

No issue poses harder questions about what the Constitution means than racial equality. George Santayana warned that “a country without a memory is a country of madmen,”7 but where does that leave a country bristling with incompatible memories? Reflecting on slavery, Jim Crow, Brown v. Board of Education, and the civil rights movement, Americans often talk right past each other.8 Is the lesson of our history that we must never allow government to classify based on race, or that we may recognize race in a benign manner to remedy past injustice and achieve diversity? Have we moved far enough past a legacy of racism that the federal government can no longer justify special measures to protect minority voters in the South? What does it mean to aim for equality under the law when people are still judged by the color of their skin? These questions divide the American public, as do questions about the scope of the problem: in 2013, 79 percent of blacks thought that America had to do “a lot more” to achieve racial equality, but only 44 percent of whites agreed with that assessment.9

Differences of opinion on these hard issues often reflect the fact that competing views of history shape the meaning we discern in current events. As Barack Obama explained in candid remarks after the Trayvon Martin trial in 2013, “I think it’s important to recognize that the African American community is looking at this issue through a set of experiences and a history that doesn’t go away.”10 His statement echoed William Faulkner’s famous line “The past is never dead. It’s not even past.”11 This is true for all Americans: our national experience of race, past and present, partakes of a history “that doesn’t go away.”

At the Court, partisans on every side of debates over affirmative action, school desegregation, and voting rights have long enlisted the Constitution in their cause. The justices, in turn, have fractured into camps that spare no quarter when combat is joined. In the first major affirmative action case, decided in 1978, Justice Harry Blackmun argued that “in order to get beyond racism, we must first take account of race.”12 His view has inherited powerful contemporary champions in Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts, along with Justices Scalia, Thomas, and Alito, couldn’t disagree more strongly. “The whole point of the Equal Protection Clause,” Roberts declared in 2013, “is to take race off the table.”13 Justice Kennedy, meanwhile, has charted a third path focused on carefully limiting when and how government policies can invoke race.14

This struggle has unfolded alongside another chapter in our tale of equality: the progress of gay rights in American life and law. While the story of race in America stretches back centuries, the gay rights movement emerged and rocketed to prominence in little more than a generation. As Kennedy told a group of law students in 2013, “Most of us, even in your own young lifetimes, probably didn’t talk much about it.… I think all of us were surprised at the speed of the thing.”15

Now many gay rights advocates wonder when, not whether, they can persuade the Court to recognize a right to marriage equality. How much longer, they ask, will an issue implicating fundamental rights continue to be put up for a vote? Given that a majority of Americans supports same-sex marriage, why wait?16 Many others feel differently. Moved by hostility to same-sex marriage or a belief that this question should be left to voters, they argue that the Court must not arrogate to itself the final word.

Equality is an explosive principle on the Roberts Court. Born in different eras and of different worlds, the justices disagree over where we have been, where we are, and where we should go. They also disagree over their legitimate role in bringing about an imagined future. These divisions have erupted in opinions striking down key parts of both the Voting Rights Act and the Defense of Marriage Act. They have also reshaped the rules that govern school desegregation and affirmative action.

Still, the story of equality and the Roberts Court has really only just begun. Ultimately, decisions made by this Court may define what “Equal Protection of the Laws” means in the twenty-first century.

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Discrimination takes many forms, but in Calhoun v. United States, a federal drug case from 2011, it seemed unmistakable.17 Frustrated with defendant Bongani Calhoun’s evasive answers, the prosecutor had asked a shocking question during cross-examination: “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?” The Court refused to hear an appeal in Calhoun, but in a rare move, Sotomayor wrote a brief statement to emphasize that “such argumentation is an affront to the Constitution’s guarantee of equal protection of the laws.” The prosecutor, she warned, had “tapped a deep and sorry vein of racial prejudice.” She added, “I hope never to see a case like this again.”

The federal prosecutor in Calhoun drew Sotomayor’s condemnation because he had invoked a pejorative racial stereotype that could inflame a jury into convicting. In general, such racial discrimination by any agent of the state prompts a straightforward resolution: we do not allow the government to deploy harmful racial classifications.

It’s easy to take this principle for granted. Yet for most of American history, the law regularly discriminated on the basis of race. It did so not just in the era of slavery but well into the twentieth century—long after the Constitution was amended in 1868 to safeguard equality. As Obama recalled in 2008, change required “Americans in successive generations who were willing to do their part—through protests and struggle, on the streets and in the courts, through a civil war and civil disobedience and always at great risk—to narrow that gap between the promise of our ideals and the reality of their time.”18 Only in the mid-twentieth century, after a massive civil rights struggle, did America finally embrace the view that government may not invoke racial classifications to harm minorities.

That triumph, however, did not undo centuries of oppression.19 To quote Obama again: “Many of the disparities that exist in the African-American community today can be directly traced to inequalities passed on from an earlier generation that suffered under the brutal legacy of slavery and Jim Crow.” These disparities are, in part, the result of segregated and inferior schools, rules that prevented blacks from owning property or obtaining mortgages, race-based exclusions from universities, denials of social services, and abuses in the criminal justice system. They are also the result of subtler but no less invidious forms of discrimination that persist through the present day. This does not mean America is defined solely by its past, or that modern Americans lack responsibility for their fate. But it does mean that any realistic account of the racial divides in American life must account for the ripples and aftershocks of legalized prejudice.

This is especially true of racially segregated education. In 1954, the Court famously abolished “separate but equal” schools in Brown. But desegregation did not follow fast on Brown’s heels. Indeed, the Court intentionally allowed the South to move very slowly—“with all deliberate speed”—in desegregating its public schools.20 Since then, the Court has walked a tortuous path.21 After a general retreat that lasted until the late 1960s, it returned to the fray and told judges to integrate school districts as a remedy for official discrimination. In 1974, however, the Court limited school busing across city boundaries, a rule that stalled integration efforts at a time of rising residential segregation between inner cities and suburbs. Then, in the early 1990s, the Court signaled that lower courts ought to return such matters to local control.

These and other trends have led to re-segregation. As a landmark study concluded in 2007, “U.S. schools are becoming more segregated in all regions for both African American and Latino students.”22

Some districts have responded to the perceived evils of segregation by adopting race-based integration plans. In 2007, the Roberts Court faced a challenge to programs in Seattle, Washington, and Jefferson County, Kentucky. Both districts allowed students to rank which schools they wished to attend. In Seattle, if a school was oversubscribed, race was used as a tiebreaker to keep each school close to the district’s white-nonwhite racial balance. In Jefferson County, elementary school students listed preferences among a cluster of non-magnet schools. Students were then assigned schools based on those preferences, subject to the rule that each school had to maintain a black enrollment of between 15 and 50 percent.

In Parents Involved in Community Schools v. Seattle School District No. 1, the Court struck down both programs.23 Roberts, Thomas, Kennedy, Breyer, and Stevens each wrote separately, turning Parents Involved into a landmark case on the true meaning of Brown and racial equality under the Constitution. Their opinions mark the broad outlines of where this Court may steer the nation in the years ahead.

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Roberts has long frowned on race-conscious programs. As far back as the 1980s, he spoke warmly of the Reagan administration’s “anti-busing and anti-quota principles,” warning of “reverse discrimination” against whites.24 On the Court, Roberts has forcefully condemned the “sordid business” of “divvying us up by race.”25 Whereas he usually prefers to write narrow rulings, Roberts has assigned himself most of the high-profile race cases and issued sweeping statements of principle.

In Parents Involved, Roberts championed a color-blind constitution, one that forbids government from using racial classifications—even when the goal is to benefit minorities.26 Quoting precedent, Roberts argued that “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Any use of race by government, he maintained, “reinforce[s] the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin.”

Claiming Brown’s mantle, Roberts insisted that “history will be heard.” In his telling, Brown was not about “the inequality of the facilities but the fact of legally separating children on the basis of race.” Seattle and Jefferson County had thus violated Brown’s core holding: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.”

To Roberts, allowing schools to use race in assigning students, whatever the reason, would ensure that the “ultimate goal of eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race will never be achieved.” There are many ways for American society to confront its legacy of racism, but the Chief sees in the Constitution a command that government be color-blind. In a memorable final line, Roberts summed up his view: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

As he so often does in race cases, Thomas wrote separately. Even those who disagree with him cannot deny that the Court has benefited from his remarkable string of solo opinions. In these essays, Thomas has drawn on a rich vein of American social thought to argue that even well-intentioned uses of race by the government ultimately harm minorities.

Parents Involved also evoked powerful memories for Thomas. In his gripping autobiography, My Grandfather’s Son, he described his reaction to forced busing in the early 1970s: “As I watched TV pictures of black children being bused into South Boston, it was clear that the situation had reached the point of total absurdity. I wouldn’t have gone to South Boston. It would have been taking my life into my hands for me to do so. Why, then, were innocent children being made to do what a grown man feared—and to what end?”27 Even in his youth, it had been clear to Thomas that “once again blacks were being offered up as human sacrifices to the great god of theory.… In the seventies you rarely had to look very far to find a theory, or a black person on whom it was being tried out.”28

In Parents Involved, Thomas warned that allowing even “benign” racial policies is an invitation to disaster: “If our history has taught us anything, it has taught us to beware of elites bearing racial theories.… Can we really be sure that the racial theories that motivated [segregationists] are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow.” Thomas then likened the arguments in support of the challenged programs to those favored by segregationists and cuttingly replied that “what was wrong in 1954 cannot be right today.” Seattle and Jefferson County “would permit measures to keep the races together and proscribe measures to keep the races apart.” For Thomas, as for Roberts, the color-blind Constitution stripped them of that prerogative.

Although Thomas usually prides himself on a firm commitment to originalism, race cases direct his attention mainly to 1954. Employing what Stanford Law Professor Pam Karlan has described as “Brown originalism,” Thomas, like many other justices, spends far more time exploring first principles as defined in Brown than he does explaining what Americans thought when they ratified the Equal Protection Clause in 1868.29 This does not make his opinions any less powerful, but his approach may reflect the fact that many historians believe that the original understanding of the Equal Protection Clause is compatible with at least some benign race-based programs.30

On the day in June 2007 when Parents Involved was announced, Breyer read his dissent from the bench. The former law professor spoke for twenty-one minutes, his voice strained with fury. “The majority is wrong,” he said. “This is a decision that the court and the Nation will come to regret.”

The Chief’s logic in Parents Involved offended Breyer on just about every level. To Breyer, only by mutilating the Constitution and stripping it of history could we make it color-blind. The Equal Protection Clause, he argued, “sought to bring into American society as full members those whom the Nation had previously held in slavery.… Those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race-conscious criteria to further that purpose, namely to bring the races together.” Breyer reasoned that the Constitution protects against the subordination of minorities but permits government to invoke race when it has solid justifications and beneficial purposes.

In Seattle and Jefferson County, Breyer saw three overpowering reasons for the local policies: (1) a remedial interest in “setting right the consequences of prior conditions of segregation”; (2) an educational interest in “overcoming the adverse educational effects produced by and associated with highly segregated schools”; and (3) a democratic interest in “teaching children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation.” The Constitution, he argued, can tolerate a political choice to use racial tools in service to these worthy goals.

Breyer presented himself as Brown’s true heir: “Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality—not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.”

Breyer viewed Brown through the lens of his yearning for workable principles in the face of real-world necessities. In much the same way, he saw Parents Involved as a case about much more than race, though racial equality was central to the outcome. It was a case about the very nature of the Constitution—and about the judicial role in making democracy work. Breyer was bracingly candid on this score: “I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems.”

Stevens joined Breyer’s dissent and added a few trenchant, personal thoughts of his own. “It is my firm conviction,” he wrote, “that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” Stevens was particularly troubled by the “cruel irony” of Roberts’s claim that Parents Involved was just like Brown, simply because in both cases “schoolchildren were told where they could and could not go to school based on the color of their skin.” As Stevens remarked, “This sentence reminds me of Anatole France’s observation: ‘The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’ The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, the Chief Justice rewrites the history of one of this Court’s most important decisions.”

While Roberts and Thomas preached the virtues of color blindness, and Breyer and Stevens pushed back, Kennedy charted a middle ground. Although he had historically taken a hard line against racial classifications, in Parents Involved he displayed considerable sympathy for the liberal positions. He acknowledged that, although “the enduring hope is that race should not matter, the reality is that too often it does.” Then, faced with the Chief’s call to simply ban all racial discrimination, Kennedy described it as “too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race.” He added that “fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution.”

Kennedy voted to strike down the programs before the Court, but he could not agree with Roberts and Thomas that “the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools.” Wary of boundless justifications for racial balancing, however, Kennedy proposed a different sort of limit. While districts may not classify students based on race, they can use “indirect means,” such as strategic choices about where to build new schools, race-conscious drawing of attendance zones, and targeted recruiting of students and faculty.

In sum, Kennedy agreed that schools have a compelling interest in avoiding racial isolation. But he disagreed with the methods used by Seattle and Jefferson County. As he explained, “The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted.” There are good reasons, he added, to look with particular skepticism on classifying individuals by race: “Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand.” His proposed alternatives, which take race into account at a more general level, partly avoid that evil. To Kennedy, they ensure that “the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin.” None of the eight other justices, however, viewed this compromise as satisfactory.

In practice, Parents Involved did not radically alter the landscape of educational segregation in America.31 Many districts had largely abandoned integration programs, focusing instead on closing the achievement gap, enhancing school choice, providing access to preschool, and undertaking other education reforms. Districts committed to racial integration, moreover, can still draw on the substantial tool kit described by Kennedy, though residential segregation remains a daunting barrier to any such integrative project.

Parents Involved is nonetheless profoundly important as a statement about the meaning of equality in the modern world. Roberts and Thomas believe that state-sponsored integration is reminiscent of segregation, a comparison that has inspired fury and sadness in many civil rights leaders.32 These justices see a clear, color-blind line that runs from Brown toward a future free of race-based policies. They see a society that has made enough progress to close the door on race-based remedies for past discrimination. They know where America is going, where the Constitution requires it to go, and will use every power at hand to make that future a reality. Breyer’s mighty dissent challenges this vision of America’s past, present, and future. He and those who share his view maintain that to overcome racism, and to build a decent society on the ruins of what a history of discrimination has left us, we may first need to account for race.

Each side in this contest sees itself as the inheritor of a grand historical project through which America may find redemption for its original sins—and each thinks the other side may return us to the evils of that demon-haunted past. At its heart, Parents Involved is a case about the Roberts Court grappling with the uncertain aim of our national trajectory.

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In June 2003, Justice Sandra Day O’Connor wrote for a bare majority in Grutter v. Bollinger to uphold affirmative action under the Equal Protection Clause.33 Although schools may not use race quotas, she ruled, they may consider a student’s race as part of a holistic inquiry designed to achieve diversity by enrolling a critical mass of minority students. But O’Connor did not think her opinion would be the final word on affirmative action. In a coda, she warned that such programs are justified by interests that will not last forever: “We expect that 25 years from now, the use of racial preferences will no longer be necessary.”

In June 2013, one day after Grutter’s ten-year anniversary, the Court announced its ruling in Fisher v. University of Texas at Austin.34 The university admitted most students without any express consideration of race and achieved a measure of diversity by accepting all Texas students who graduated in the top 10 percent of their high school class. To secure what it considered to be a “critical mass” of diversity, the university then used race as one of several factors when it filled the rest of its class. Abigail Fisher argued that the university thereby violated the Equal Protection Clause. She had good reason to expect a warm reception at the Court. Since Grutter, Alito had replaced O’Connor, creating a five-justice block of votes for a narrowing—or outright elimination—of affirmative action.

The instant Roberts called the case, spectators gripped their seats. Fisher had been argued in October; every other case heard that month had been decided by late April. Court watchers speculated about behind-the-scenes maneuvering, perhaps even a reversal of Grutter.35 Indeed, at oral argument, Breyer had pressed Fisher’s lawyer, nervously joking that “Grutter said it would be good law for at least 25 years … and I know that time flies, but I think only nine of those years have passed.”

With Kagan recused, the best the university could hope for was a four-to-four tie, which would affirm the lower court ruling in its favor. But all signs pointed toward a loss. The only questions seemed to be how big a loss and why was it taking the Court so long to decide. The Court’s drawn-out struggle with Fisher, though, should not have been surprising, especially since affirmative action hits several justices close to home.

In his memoir, Thomas offers a scathing indictment of affirmative action. Acknowledging that race played a role in his admission to Yale Law School, Thomas describes the experience as a painful one: “I felt as though I’d been tricked, that some of the people who claimed to be helping me were in fact hurting me.”36 The “paternalistic big-city whites,” he adds, “offered you a helping hand so long as you were careful to agree with them, but slapped you down if you started acting as if you didn’t know your place.”

At Yale, Thomas worked hard to “vanquish the perception that [he] was somehow inferior to [his] white classmates.” Nonetheless, he recalls that “it was futile for me to suppose that I could escape the stigmatizing effects of racial preference, and I began to fear that it would be used forever after to discount my achievements.”37 Thomas blames affirmative action for these humiliations; “racial preference had robbed [his] achievement of its true value.”38 In interviews, Thomas has said that this stigma pursued him onto the Court. “Once it is assumed that everything you do achieve is because of your race,” he warns, “there is no way out.”39

Sotomayor also benefited from race-conscious admissions when she applied to Princeton and Yale Law School. She has described herself as “a product of affirmative action,” recognizing that she was admitted despite lower standardized test scores.40 But unlike Thomas, she does not disparage that outcome: “I had no need to apologize that the look-wider, search-more affirmative action that Princeton and Yale practiced had opened doors for me. That was its purpose: to create the conditions whereby students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run.”41 To Sotomayor, affirmative action is not to blame when others diminish her accomplishments. Rather, “to doubt the worth of minority students’ achievement when they succeed is really only to present another face of the prejudice that would deny them a chance even to try.”42 While Sotomayor recognizes that race-conscious admissions policies present hard questions, she has emphasized that “for me, it was a door-opener that changed the course of my life.”43

Sotomayor, though, faced painful challenges. Reflecting on Princeton in the 1970s, she described it as “an environment where an undercurrent of hostility often belied the idyllic surface.”44 The campus paper “routinely published letters to the editor lamenting the presence on campus of ‘affirmative action students,’ each one of whom had presumably displaced a far more deserving affluent white male and could rightly be expected to crash into the gutter built of her own unrealistic aspirations.” With these “vultures circling,” Sotomayor recalls facing “relentless” pressure to succeed.

Alito, who graduated from Princeton in 1972, just four years before Sotomayor, also developed views on affirmative action early in his career. Just over a decade after graduating, in a bid for promotion at the Reagan Department of Justice, Alito wrote that he was “particularly proud” of his work developing arguments “that racial and ethnic quotas should not be allowed.”45

Of course, affirmative action isn’t always about race. While Alito and Sotomayor were still undergraduates, Ginsburg argued a series of Supreme Court cases that first established constitutional rights to sex equality. As co-founder and director of the Women’s Rights Project at the ACLU, she spent much of her career championing equal rights for women—an issue that has, for the most part, remained conspicuously absent from the Roberts Court docket of constitutional cases.

After O’Connor retired in 2006, Ginsburg was the only woman left on the Court, an experience she has since described as “almost like being back in law school in 1956, when there were 9 of us in a class of over 500.”46 After Obama nominated Sotomayor, Ginsburg acknowledged that she would be thrilled not to “be the lone woman around this place.”47 And when asked about Sotomayor’s self-description as a product of affirmative action, Ginsburg pointedly replied, “So am I.” After all, she explained, “I was the first tenured woman at Columbia.” She had been hired because of pressure to add women professors. “But when I got to Columbia,” she recalls, “I was well regarded by my colleagues.… They backed me up.”

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Spectators and journalists alike were surprised by the Court’s ruling in Fisher on that June day in 2013: by a vote of seven to one, the justices refused to render a final verdict on the university’s admissions program. Rather, in an opinion by Kennedy, the Court ruled that a lower court had erred when it had deferred to the university’s insistence that consideration of race was necessary to achieve diversity. Under Grutter, courts defer to a university’s “educational judgment” that diversity is “essential to its educational mission.” But once a university decides to pursue diversity, Fisher requires it to prove in court “that the means chosen by the University to attain diversity are narrowly tailored to that goal.” Specifically, judges must “ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” With this new statement of the law, Kennedy sent Fisher back to the Fifth Circuit Court of Appeals so that lower court judges could reevaluate the university’s admissions policy.

Fisher afforded Kennedy an opportunity to turn part of his Grutter dissent into a majority opinion. In Grutter, he had explained that forcing schools “to seriously explore race-neutral alternatives” would focus their “talents and resources” on “devising new and fairer ways to ensure individual consideration.” These race-neutral programs, he argued, might achieve diversity while avoiding “preferment by race,” which “can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.”

In Grutter, Parents Involved, and Fisher, Kennedy rejected absolute arguments for a color-blind constitution. He recognized that ensuring diversity and thwarting racial isolation are important enough interests to sometimes outweigh a presumption against racial classification. But his openness to “benign” classifications came with a catch: because, as he sees it, governmental use of race is always dangerous, the Constitution imposes a harm-mitigation rule. Government must prove that the use of race to achieve its goals is strictly necessary—and that it has made as indirect and minor a use of race as possible. In Kennedy’s view, this requirement mitigates the damage of invoking race and it sets government on a path toward little or no use of race-based measures at all.

Kennedy’s opinion attracted some surprising signatories: Roberts, Alito, Breyer, and Sotomayor. This unusual coalition suggests that Kennedy’s draft may have emerged from tense internal negotiations as the only one that could win five votes, and that his colleagues on the left and right joined it to avert a cacophony of separate, divisive writings.

Thomas and Scalia joined Kennedy’s majority too, but they wrote separately to clarify that they still believe government must be color-blind. Scalia kept his concurrence to three sentences, but his views are well-known from earlier opinions: “To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.”48 Faced with affirmative action cases, Scalia has displayed particular sensitivity to the race-based resentment that such discrimination engenders among whites. Thus, at argument in Grutter, he remarked, “The people you want to talk to are the high school seniors who have seen people visibly less qualified than they are get into prestigious institutions where they are rejected. If you think that is not creating resentment, you are just wrong.”

Thomas’s opinion in Fisher offered further evidence of his deep-seated opposition to all affirmative action. “Every time the government places citizens on racial registers,” he wrote, “it demeans us all.” No court, he added, “would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, [or] Martin Luther King, Jr.” And rightly so: “No benefit in the eye of the beholder can justify racial discrimination.”

In a section likely shaped by his own experiences, Thomas ripped into “the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities.” In his words, “The worst forms of discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.” Here Thomas invoked history: “Slaveholders argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life,” and segregationists said that “separate schools protected black children from racist white students and teachers.” Then, as now, advocates of discrimination were wrong: “Racial discrimination is never benign.” It results, Thomas argued, in the admission of students who struggle to compete and emerge with tainted accomplishments.

Even as her left-leaning colleagues joined Kennedy, almost certainly for tactical reasons, Ginsburg would have none of it. Drawing a line in the sand, she composed a powerful dissent.

Ginsburg has long supported affirmative action. In 2003, she argued that “we are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools.”49 Against that historical background, “actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.” Quoting Judge John Minor Wisdom, a civil rights hero and an iconic jurist, Ginsburg reasoned that “the Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination.”

In Fisher, Ginsburg attacked Kennedy’s compromise position. She had spent her career trying to persuade the Court to speak openly about a form of discrimination once shrouded in silence. Kennedy’s insistence on what she saw as deliberate obfuscation struck her as absurd. “Only an ostrich,” she caustically remarked, “could regard the supposedly race neutral alternatives as race unconscious.” Driving home the point, Ginsburg borrowed sarcasm from 1935: “The notion that Texas’ Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell’s famous statement: ‘If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.’ Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.” Surely, Ginsburg exclaimed, we should favor honest dialogue about race over “camouflage.”

Indeed, Ginsburg might have added that true race neutrality could well prove impossible. In telling their story, applicants of all sorts (and their recommenders) draw on personal experiences. In some cases, those experiences include overcoming racial discrimination, navigating issues of race and identity, or celebrating racial self-understanding. Students may be drawn to law, for example, after seeing too many people who look like them get “randomly” stopped and frisked. Forcing schools to blind themselves to any hint of race could push them to distort their review of applications. In a world that still sees, feels, and cares about color, court-ordered color blindness can produce awkward, race-conscious results.

Kennedy’s opinion, though, is now the law of the land. It allows race-based affirmative action, but only when a school can prove that race is critical to achieving diversity. Schools must prove that point, moreover, to federal judges—plenty of whom will look doubtfully on their position and require them to disprove the adequacy of other methods. This may be hard to do, especially when available data are inconclusive.

The main effect of Fisher will therefore be to direct attention toward race-neutral means of ensuring diversity. Common proposals include preferences for low-income students or students from low-income neighborhoods, partnerships between colleges and disadvantaged high schools, the elimination of legacy-based admissions, expanded financial aid budgets, and top 10 percent programs like the one reviewed in Fisher. Many of these options seek to exploit correlations between race and income or race and geography. A scholarly battle already rages over whether income and geography are close enough proxies for race, and whether any of the leading alternatives to race-based affirmative action will suffice to create a “critical mass” of racial diversity.50

Some see Fisher as an opportunity to enshrine a new era of durable programs that ensure diversity and focus on economic disadvantage.51 These commentators point out that race-based affirmative action is deeply unpopular and has already been banned in several states. Others warn, as the New York Times did, that replacing race with class “may simply reinforce stereotypes within the student body that will equate minority students with poverty, masking both the economic (and ideological) diversity within minority communities but also the challenges that confront white working-class students.”52 Race, many add, cannot simply be reduced to class. Race has its own history, meaning, and importance.53

Whatever its promise and pitfalls, Fisher marks a turning point for affirmative action. It allows schools to value racial diversity but scowls at explicit consideration of race. Ginsburg saw this as Janus-faced logic, and her dissent offers a strong case for candor. Kennedy, though, did not see it that way. As he explained in Parents Involved, “If this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it.” Given the strong probability that Roberts and Alito would follow Scalia and Thomas to end all affirmative action, Kennedy’s view is likely to be the one that matters most on the Court for the foreseeable future.

*   *   *

The Voting Rights Act of 1965 was more than a mere statute. By the early 1960s, America had endured nearly two hundred years of bitter struggle over race and the right to vote. Although the Fifteenth Amendment, ratified after the Civil War, commanded that the right to vote not be denied on account of race, bigoted laws and brutal repression in the South had nullified this rule for much of the twentieth century. Even after Brown, the right to vote remained off-limits for many southern blacks. Poll taxes, literacy tests, absurd registration rules, and dozens of other horrid innovations stood in the way, as did the threat of violent reprisal. One of the great ambitions of the 1960s civil rights movement was to shatter barriers between blacks and voting booths. At stake was more than individual dignity and America’s democratic legitimacy; armed with the right to vote, blacks could empower and protect themselves through the political process.54

At first, though, the best efforts of civil rights activists and their allies in the federal government came to naught. It was like battling the Hydra: every law struck down was replaced by one, two, or three more. As civil rights advocates waged a war of attrition against devious and persistent racism, they realized that to win they had to change the state of play.

Against this background, Congress passed the Voting Rights Act (VRA). It was no ordinary law. Men and women had died for it. They had fought on bridges and in churches and in their homes. They had been firebombed and beaten, blasted with water and savaged by attack dogs. Etched into the United States Code by a heady mixture of blood, politics, and principle, the VRA was the crown jewel of the civil rights movement, its best hope for redemption of American democracy. Through it, Congress finally gave life to the Fifteenth Amendment—and to the promise of equal protection embodied in the Fourteenth Amendment. As Lyndon Johnson told Congress in a heartfelt plea for legislation, “Should we defeat every enemy, should we double our wealth and conquer the stars, and still be unequal to this issue, then we will have failed as a people and as a nation.”55

The VRA was exceptional not only in its birth but also in its method. Its most important provision—Section 5—required certain jurisdictions, mostly in the South, to obtain permission from the federal Department of Justice before putting election laws into effect. This creative “preclearance” rule was meant to prevent local officials from outmaneuvering civil rights litigation. And in most respects it succeeded, as did the rest of the law.56 A Department of Justice study estimated that in the five years after the VRA was passed, nearly as many blacks registered to vote in Georgia, Alabama, Louisiana, North Carolina, Mississippi, and South Carolina as in the entire century before 1965.57 On nearly every front—including registration rates, voter turnout, and minority representation—the VRA achieved its goals.

In 1970, the Court upheld the VRA as an exercise of Congress’s power under the Fifteenth Amendment to protect minority voting rights by “appropriate legislation.”58 Congress itself then reconsidered the VRA on several occasions, reauthorizing the law after extensive hearings in 1970, 1975, and 1982. In 2006, Congress again considered reauthorization of the VRA. Since 1982, the Court had narrowed its view of Congress’s power to enforce the post–Civil War amendments—the constitutional basis for Section 5 of the VRA.59 Congress therefore amassed a huge factual record and held extensive hearings to determine whether it should once again reauthorize the VRA preclearance formula and rule.60 Despite some warnings that the law might be unconstitutional if left unchanged, Congress reauthorized both of those sections of the VRA for another twenty-five years by an overwhelming majority.61

By the time he arrived on the Court, Roberts had long opposed the VRA; he had openly professed that view while working for Ronald Reagan’s Department of Justice in 1982.62 To Roberts, Section 5 imposed a substantial burden on covered states that was no longer justified. In the 2009 case of Northwest Austin Municipal Utility District No. 1 v. Holder (“NAMUDNO”), his opinion for eight justices fired off a warning flare: “Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare.”63 Acknowledging that “these improvements are no doubt due in significant part to the Voting Rights Act itself,” Roberts cautioned that “the Act imposes current burdens and must be justified by current needs.”

Although the Chief ultimately decided NAMUDNO on narrow grounds, he put Congress on clear notice that the VRA’s preclearance rule was in peril. He also laid down a cache of legal tools for the future if Congress failed to act. Creating new doctrine, Roberts asserted that America has maintained a “historic tradition that all the States enjoy ‘equal sovereignty.’” He then declared that “a departure from the fundamental principles of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” In other words, Roberts objected that Section 4 of the VRA—its coverage formula—singled out certain states for a weighty burden even though “the evil that Section 5 is meant to address may no longer be concentrated” there. Against claims that the VRA preclearance rule was essential for racial equality in voting rights, Roberts interposed a different kind of equality argument, one focused on equal treatment of the sovereign states at the hand of the federal government.

Congress did not modify the VRA to bring it into line with Roberts’s view of the nation’s “current needs.” Its inaction set the stage for a high-stakes showdown that reached the Court in 2013: Shelby County v. Holder.64

Viewed as the last stand of Section 5, Shelby County unleashed raw emotions on the Court. At argument, the right-leaning justices assailed the VRA coverage formula. Roberts bluntly challenged Solicitor General Don Verrilli, asking, “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?” Kennedy, too, made his skepticism plain: “If Alabama wants to have monuments to the heroes of the Civil Rights Movement, if it wants to acknowledge the wrongs of its past, is it better off doing that if it’s [its] own independent sovereign or if it’s under the trusteeship of the United States Government?” Scalia, though, raised the most eyebrows when he charged that the 2006 reauthorization of Section 5 was “very likely attributable” to “perpetuation of racial entitlement.” He added, “I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution. Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”

The left-leaning justices struck back, accusing their colleagues of overstepping judicial bounds. Sotomayor pressed a lawyer on whether “the right to vote is a racial entitlement in Section 5,” adding later, “Why should we make the judgment, and not Congress, about the types and forms of discrimination and the need to remedy them?” Kagan echoed this point while questioning Shelby County’s attorney: “Well, that’s a big, new power you are giving us, that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick.” Breyer, in turn, bristled at the suggestion that it was improper to target southern states: “What do you think the Civil War was about? Of course it was aimed at treating some States differently than others.”

Oral argument in Shelby County was heated and dramatic. It was also marked by a profound irony: when Debo Adegbile of the NAACP stood to argue that race discrimination persists in America, his eleven minutes at the podium were the only time a black lawyer addressed the Court in the seventy-five total hours of oral argument it held during the 2012 term.65

Unlike Fisher, there was no great mystery about Shelby County. It was clear that the VRA preclearance requirement was doomed. Roberts wrote the majority opinion and held that the VRA’s coverage formula was unconstitutional. Conceding that the VRA had achieved great things, he condemned its heavy and persistent burden on the equal sovereignty of the states: “History did not end in 1965. By the time the Act was reauthorized in 2006, there had been 40 more years of it. In assessing the current need for a preclearance system that treats States differently from one another today, that history cannot be ignored.” Now that we are beyond a world of voting tests and poll taxes, Roberts argued, Congress could justify burdening states with a preclearance rule only by first finding that “current conditions” warranted it. Congress cannot, he instructed, “rely simply on the past.” Yet that, he concluded, was precisely what it had done.

Joined by Breyer, Sotomayor, and Kagan, Ginsburg dissented. In reauthorizing the VRA, she wrote, Congress had acted properly to enforce the post–Civil War amendments, whose purpose was to “arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States.” The Constitution, she added, entrusted such enforcement to Congress, and it was not the Court’s role to second-guess the legislature on how to get there. Ginsburg added that the Chief’s reliance on a “fundamental principle of equal sovereignty” was wholly misplaced—that principle, she retorted, had never been applied to limit Congress’s power to create “remedies for local evils.”

Unmoved by the Chief’s insistence that the South has come a long way, Ginsburg drew her reply from Shakespeare’s The Tempest: “What’s past is prologue.” She explained: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Pointing to Congress’s vast evidentiary record, Ginsburg reasoned that Congress was within its rights to conclude that the covered states remain uniquely troubled by new forms of voting discrimination. These “second generation barriers,” she observed, include racial gerrymandering and burdensome voter ID laws.66 And the VRA preclearance rule thus “remains vital to protect minority voting rights and prevent backsliding.” Making her views crystal clear, Ginsburg concluded, “In my judgment, the Court errs egregiously by overriding Congress’ decision.”

The disagreement in Shelby County unfolded on many levels. It reflected a debate over the Court’s role in ensuring that Congress respect the Constitution’s structure of federalism. It mirrored varying levels of concern on the Court about alleged violations of voting rights. It tapped into long-running debates over federal power under the post–Civil War amendments to protect individual rights from recalcitrant states. And it revealed a sharp, if familiar, split in the justices’ solicitude for burdens on state sovereignty.

But the most striking disagreement in Shelby County involved the arc of American history. In 2013, the Chief Justice of the United States held that the South had moved far enough past its legacy of racial discrimination that extraordinary measures to protect voting rights in that region were no longer justified. His opinion was a self-conscious landmark. It focused nearly all of its attention on the equality of the sovereign states, remarking upon the equality concerns that birthed Section 5 of the VRA only to deem them surpassed or geographically dispersed. Just as O’Connor charted a line in Grutter and guessed that we would need twenty-five more years of affirmative action, so did Roberts take the measure of our past and present to conclude that Congress must lay down its arms. The future of race and voting rights, Roberts announced, is here. In that sense, Shelby County echoed Parents Involved: both opinions call on the nation to move beyond its legacy of racism and the special measures supposedly justified by that tragic inheritance.

Ginsburg’s dissent came from a different place. It offered a story of imperfect advances and occasional backsliding, not a self-confident tale of transcendence. It drew out the reality of persistent racial division and the potential for tragic irony in declaring victory in a war that rages subtly all around us. It marked the need for sentinels against a past that may return again and the cautious wisdom of leaving successful walls standing. In Shelby County, Ginsburg looked out and observed a society in which covered jurisdictions remain afflicted by innovative discrimination—and thus saw the very evil that Section 5 was designed to prevent. To Roberts’s celebratory account, Ginsburg replied, No, we are not there yet. Her dissent saw grave error in so sharply separating our past and present—an error, she warned, that may embarrass the future.

The Roberts Court’s engagement with racial equality has been forged in the crucible of competing visions of America’s course through history. The opinions in Parents Involved, Fisher, and Shelby County are shot through with incompatible lessons from our past and prescriptions for the future. Even as they disagree over the moral of our national story, the justices debate their role in moving us along and deciding what the Constitution requires in light of current conditions. Race, however, is not the only domain in which the Court has faced these difficult questions while implementing the Constitution’s promise of equal protection.

*   *   *

Love, they quickly learned, is not a constitutional argument.

Richard and Mildred Loving were born to families that had lived in the rolling hill country around Caroline County, Virginia, for generations.67 To the Lovings, Caroline County was a friendly and familiar place, lit by their childhood memories and the warmth of family. They first grew close when Richard was seventeen and Mildred was eleven. He was white, she was part black and part Cherokee, and Caroline County—located just north of Richmond—was known for an unusually easygoing attitude toward issues of race. After a roughly seven-year courtship, in 1958 Richard and Mildred decided to travel to Washington, D.C., to get married.

Five weeks later, acting on an anonymous tip, three police offers burst into their home at two A.M. and arrested them for violating Virginia’s Racial Integrity Act, which banned interracial marriages. With police flashlights shining in his face, Richard pointed to their marriage certificate. But the county sheriff replied, “That’s no good here.” After a brief stint in jail, the couple pleaded guilty before Leon Bazile, a judge of the Caroline County Circuit Court. Bazile later wrote, “Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents.… The fact that he separated the races shows that he did not intend for the races to mix.” To avoid a one-year prison sentence, the Lovings agreed to leave Virginia and not return together for twenty-five years. Felons in the eyes of the law, they built a life in exile, bearing and raising three children in Washington, D.C. Far from the world they knew best, the Lovings struggled to get by financially and endured a terrible loneliness. As Mildred told a friend years later, “I missed being with my family and friends.… I wanted my children to grow up in the country, where they could run and play, and where I wouldn’t worry about them so much. I never liked much about the city.”68

Unable to tolerate total separation from their true home, the Lovings began sneaking back into Virginia; usually, Mildred arrived in open daylight and then Richard drove down under cover of darkness. This was no way to live. By 1963 they could not take it any longer. Desperate, they wrote a letter to Attorney General Robert Kennedy, imploring him to help. Kennedy responded by referring the Lovings to the American Civil Liberties Union, which agreed to take their case and filed suit in 1964.

The Lovings were neither activists nor radicals. Their lawyer once remarked that they were “very simple people, who were not interested in winning any civil rights principle.… They just were in love with one another and wanted the right to live together as husband and wife in Virginia, without any interference from officialdom.” Faced with such raw bigotry and the high price it had exacted, however, they appealed to the courts. When the Supreme Court in 1966 agreed to hear their case, a lawyer asked Richard if he had anything to say to the justices. Richard replied, “Tell the court I love my wife, and it’s just unfair that I can’t live with her in Virginia.”

Three years earlier, at a restaurant called Portofino in New York’s Greenwich Village, Edith Windsor had met Thea Spyer.69 Portofino was known for attracting a lesbian crowd on Friday nights, free of anti-gay entrapment. Windsor, a brilliant thirty-four-year-old computer programmer and divorcée eager to pursue her true romantic interests, was immediately captivated by Spyer, a charismatic PhD in psychology more familiar with New York’s lesbian scene. They danced, and then kept on dancing until Windsor ripped a hole in her stocking. “We immediately just fit, our bodies fit,” Spyer later recalled. They started dating, and four years later Spyer proposed—with a pin, not a ring, to avoid questions. They moved in together near Washington Square Park, bought a house on Long Island, traveled the world, and proudly marched for civil rights.

In 1977, tragedy struck: Spyer, aged forty-five, was diagnosed with chronic progressive multiple sclerosis. Windsor eventually became Spyer’s full-time caregiver, tending to her every need. When, in 2007, Spyer’s doctors warned her that she had just one year to live, she woke up the next morning and asked Windsor, “Do you still want to get married?” Windsor did, so they flew to Canada with close friends and were wedded in Toronto in a ceremony officiated by Canada’s first openly gay judge. Windsor was seventy-seven, Spyer was seventy-five, and it was their last trip together. They got married, Windsor recalls, because “marriage is different.”70 As Windsor told a crowd at City Hall in New York, with Spyer by her side, “Thea looks at her ring every day, and thinks of herself as a member of a special species that can love and couple ‘until death do them part.’”71

Two years after their wedding, Spyer died. Devastated, Windsor suffered a heart attack a few weeks later—the result of what doctors informally call “broken-heart syndrome.” Once she recovered, Windsor soon realized that despite the life they had built together, “the federal government was treating us like strangers.” She owed a huge estate tax while living on a fixed income, a burden imposed solely because the federal Defense of Marriage Act (DOMA), which had been enacted in 1996, said her marriage was worthless in the eyes of federal law. Windsor disagreed and filed suit in federal court.

*   *   *

These two couples, one of different races and one of the same gender, sought equal recognition before the law. Separated by half a century, they stood united in a belief that the Constitution protects their dignity, liberty, and equality. Each couple—one in life, one in death—found its way to the Court. And each won an opinion vindicating their rights. But, as is so often true at the Court, there is more to these tales than meets the eye.

Challenges to bans on interracial marriage had reached the Court long before the Lovings’ case. Just one year after Brown v. Board of Education was decided in 1954, in fact, a case called Naim v. Naim squarely presented the issue. Reeling from the massive backlash to Brown and aware that over 90 percent of whites opposed interracial marriage, the Court fabricated an excuse to duck the issue.72 It kept on ducking until 1967, by which point the number of states with laws banning it had fallen to sixteen, even though most whites still opposed interracial marriage.73 Only after the nation had made a measure of progress would the justices intervene. The same year that Spyer covertly proposed to Windsor, the Court decided Loving v. Virginia.74

In a unanimous opinion, Chief Justice Earl Warren celebrated liberty and equality, constitutional values that the Court finally enforced. “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause,” he held. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

Two years after Loving, police officers raided the Stonewall Inn, a gay bar in New York City.75 Raids were a fact of gay life after World War II. Around the country, police arrested thousands of men for lewdness, loitering, vagrancy, and sodomy. Known and suspected homosexuals were banned from federal employment, dishonorably discharged from the military, stripped of medical and legal licenses, denied the right to adopt children, and subjected to brutal “treatment” for their “disease.” Gay foreigners were denied permission to enter the country. Despite the emergence of early civil rights efforts, the public looked on gays and lesbians with fear and disgust.76 State-sanctioned discrimination was widely accepted; when IBM hired Windsor, it unknowingly violated an executive order barring companies with federal contracts from employing homosexuals.

The Stonewall raid in 1969 unleashed pent-up fury in the gay community. Angry crowds marched, drag queens assembled for a chorus line rally, a firebomb exploded, and “Gay Power” graffiti appeared throughout New York City. Protests spread across the nation, launching a wave of gay rights activism and a push for social acceptance. The movement built momentum through the 1970s and ’80s, scoring remarkable victories in dark times. As people came out of the closet to friends and family, attitudes started changing. The emergence of AIDS, a tragedy of unspeakable sadness, led to rapid political organization in the face of initial apathy from public health officials. In 1986, however, the movement encountered a major setback when the Court heard Bowers v. Hardwick, a landmark gay rights case that arose in Georgia. Split five to four, the Court ruled that the Constitution did not prohibit states from making consensual gay sex a crime.77

In 1996, with the cultural ground shaking beneath its feet, the Court once again heard a case about gay rights. By a six-to-three vote in Romer v. Evans, it struck down Amendment 2, an amendment to the Colorado constitution that banned any branch or political subdivision of the state from prohibiting discrimination based on sexual orientation.78 Writing for the Court and invoking the Equal Protection Clause, Kennedy noted that Colorado had withdrawn “from homosexuals, but no others, specific legal protections from the injuries caused by discrimination.” As Kennedy saw the matter, “It is not within our constitutional tradition to enact laws of this sort.… A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Reaching the “inevitable inference” that Colorado’s amendment was “born of animosity” toward gays and lesbians, Kennedy deemed it unconstitutional.

The Court next heard a gay rights case, Lawrence v. Texas, in 2003.79 By then, American attitudes toward gays and lesbians had been transformed, and it seemed almost comical to insist that a Texas ban on consensual gay sex was all about “sodomy.” This absurdly archaic term sounded more like a disease than something practiced by millions of Americans, gay and straight. It also distracted attention from what nearly everyone understood to be the true purpose of the Texas law: to criminalize homosexuality and express moral disapproval of gay and lesbian intimacy. Although this message would have been utterly unremarkable just a few decades earlier, in the early 2000s it struck many Americans as brutal and discriminatory. The law’s challengers called out its anti-gay animus, adding that it was bizarre and tyrannical for Texas to use its criminal law to control ordinary sex between two adult men.

Six justices voted to strike down the Texas law, but Kennedy faced a delicate task in explaining its constitutional flaw. In Bowers the Court had mockingly dismissed as “facetious” the notion that the Constitution protects a “right to engage in homosexual sodomy.” For nearly two decades, Bowers had loomed like a thundercloud over claims to gay and lesbian equality. The Court’s blessing of laws that treated gays and lesbians as criminals was invoked to justify discrimination in adoption hearings, deportation proceedings, dishonorable discharges from the military, and many other contexts.

O’Connor, a repentant member of the Bowers majority, favored a narrow ruling against Texas that would technically leave Bowers standing. But Kennedy disagreed. The occasion called for more, much more—an opinion that would recognize and repair the terrible insult wrought by Bowers. As Kennedy put it, Lawrence called upon the Court to protect “spheres of our lives and existence … where the State should not be a dominant presence.” It also encompassed the “more transcendent dimensions” of an “autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Modern understandings of liberty and equality were simply incompatible with what the Court had said in 1986. The right at issue was not just about engaging in “homosexual sodomy.” Kennedy decided to address Bowers head-on and destroy it utterly.

He did not disappoint. Composing an opinion that was half wrecking ball, half olive branch, Kennedy wrote: “Bowers was not correct when it was decided, and it is not correct today.… The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.… As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Women and men, gay and straight alike, wept openly in the courtroom. A new age had dawned in the Marble Palace.

Lawrence slammed the door shut on Court-sanctioned hostility to the equal dignity of gays and lesbians, at least in regard to their most private affairs. But hot on the heels of this landmark case, a new issue took center stage: same-sex marriage. Just a decade after Lawrence, Windsor’s challenge to DOMA would reach the Court.

*   *   *

Scalia harbored few doubts about what Lawrence meant for the question of marriage—and even fewer reservations about expressing them. In dissent, he charged Kennedy with signing on to the “homosexual agenda,” blasting him for “dismantl[ing] the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” This opinion, which belongs to the “sky is falling” genre of dissents, added laws against bigamy, incest, and bestiality to the list of statutes supposedly endangered by Lawrence. Yet at least with respect to marriage, Scalia was right about the ruling’s potential. The merged threads of liberty, equality, and dignity that constituted the core of Kennedy’s reasoning could easily be read as gesturing toward marriage equality.80

Marriage, though, raised difficult questions, extending far beyond disputes over whether doctrines of liberty or equality compel recognition of same-sex marriage rights. The most challenging issues concerned the Court’s role at a moment of rapid change in public beliefs about how the Constitution’s principles apply to gays and lesbians.81

All nine justices on the Roberts Court agree that discrimination on the basis of race is unconstitutional and must be subjected to the strictest judicial scrutiny. Its recent disputes have turned mainly on how to square affirmative action and race-conscious integration with that principle. In contrast, the role of the Court and Constitution in thwarting discrimination based on sexual orientation remains deeply unsettled. Even after Romer and Lawrence, the justices openly debate whether we have yet reached a point—or will ever reach a point—where the Equal Protection Clause is understood to require searching scrutiny of discrimination against gays and lesbians. (The originalists, Scalia and Thomas, likely believe that this question was settled against same-sex marriage over a century ago, when the Fourteenth Amendment was ratified.) Questions about the social meaning of discrimination against gays and lesbians, and about the propriety of a judicial intervention that might compel an answer to the same-sex marriage issue, still loom large. So do disputes about the role of other constitutional values, including liberty, dignity, intimate association, and religious freedom. These debates, in turn, are caught up in disagreements over whether gays and lesbians can protect themselves adequately through the political process, whether sexual orientation is an immutable trait, and whether any credible social scientific evidence supports the anti–gay rights view.

The Court is sensitive to these developments. As exemplified by the delay between Naim and Loving, the Court sometimes seeks to avoid a backlash and to respect democracy by staying its hand while the nation deliberates.82 By stepping gently into cultural wars, the Court may preserve its legitimacy and ensure that its interventions are respected. But as the justices know well, such logic, taken too far, can lead them to abdicate their role. It is the Court’s sworn duty, after all, to protect even unpopular minorities when the Constitution so requires—and delay may come at the price of terrible suffering and rank injustice. The Court, moreover, can play a vital role in public debate by reminding Americans of shared constitutional principles. Considerations of this sort often influence whether and when the Court gets involved in high-profile issues, how broadly it decides to rule when addressing them, and what principles it lays down for the future.

Mere months after Kennedy issued his remarkable Lawrence opinion, the marriage question assumed new and pressing importance when the highest court of Massachusetts held that its state constitution compelled recognition of same-sex marriages. Citing Lawrence, the court explained, “Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family—these are among the most basic of every individual’s liberty and due process rights.”83 In words now recited at many weddings, Chief Justice Margaret Marshall described why marriage is so important: “Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.”

Like a firebolt, the Massachusetts ruling ignited national debate.84 Previously, many gay rights litigators had avoided the issue of marriage, fearful of triggering a backlash, and focused on other important objectives. Their caution was grounded in experience: when Hawaii’s top court had first raised the issue of same-sex marriage rights in 1993, it had caused a national furor. In the ensuing uproar, Congress had passed—and Bill Clinton had signed—DOMA.85 This law provided that the federal government recognized only opposite-sex marriage; as a consequence, a same-sex couple treated as married in their home state was viewed as two single people by Congress.

Massachusetts, though, made the marriage issue unavoidable. The nation’s political parties took up the debate, initially spurred by Republicans eager to exploit divided sentiment among Democrats and mobilize their socially conservative base. States began voting on (and passing) constitutional amendments enshrining a “traditional” definition of marriage. Initially caught somewhat off guard, gay rights groups turned considerable attention and resources to the fight. Marriage ultimately became the premier gay rights issue of the early 2000s, the focus of intense social, cultural, and political energy. In a remarkably short time span, public opinion on the marriage question moved sharply in favor of same-sex marriage rights. Partly as a result, after a series of devastating losses in 2004 and 2005, marriage equality advocates scored huge victories near the end of the decade. By the early 2010s, they were winning one legislative and judicial victory after another in a massive state-by-state civil rights campaign.

In 2012, faced with important and controversial decisions by the lower federal courts, the Roberts Court plainly had no choice but to enter the fray. It ultimately agreed to hear two cases. One of them involved a challenge to California’s Proposition 8, a statewide referendum that had reversed a California Supreme Court ruling recognizing same-sex marriage rights. With state officials unwilling to defend Proposition 8, the Court ultimately dismissed this case on procedural grounds.86 That dismissal left in place a lower court ruling that struck down Proposition 8 and led California to conclude that it must allow same-sex marriages. The other case that the Court granted in 2012 was a direct constitutional attack on DOMA. It had been filed in New York by Edith Windsor.

United States v. Windsor reached the Court in a strange posture.87 The Department of Justice would ordinarily have defended DOMA as a law duly enacted by Congress, but in this instance it filed briefs on Windsor’s side of the case.88 Obama had concluded that DOMA violated the Constitution and that he could not in good faith order his lawyers to defend it. In response, Republicans in the House of Representatives instructed an entity called the Bipartisan Legal Advisory Group to defend DOMA. Whereas the political branches usually stand united in their defense of federal statutes, in Windsor the Court was well aware of their bitterly divided opinion. That split offered an apt metaphor for the rest of the nation.

The Court was also intimately familiar with the stakes of the case. Back in 1986, Justice Lewis Powell—the swing vote in Bowers—told a clerk, “I don’t believe I’ve ever met a homosexual.”89 As a result, he confessed, he simply did not understand the stakes of the case, or why anyone would even want to engage in “sodomy.” By 2013, nobody on the Court could credibly suggest that gays and lesbians were beyond their comprehension—not least because plenty of openly gay young lawyers had clerked for the justices.90 Nor was the Court a bastion of so-called traditional marriage: reflecting the diversity of America’s family life, its members had experienced divorce, adoption, singledom, and widowhood.91 Obliged to decide what the Constitution says about the right to marry, the Roberts Court boasted a wealth of perspectives.

In Windsor, Kennedy—joined by Ginsburg, Breyer, Sotomoyor, and Kagan—held that DOMA cannot stand. But rather than rule broadly that the Constitution protects a right to same-sex marriage, he limited the direct holding of his opinion to the federal law under review.

Kennedy acknowledged that “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.” But challenges to this belief, he wrote, had led some to “the beginnings of a new perspective, a new insight” that bans on same-sex marriage cause an “unjust exclusion.” Accordingly, “slowly at first and then in rapid course, [states like New York] came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.” In so doing, they “sought to give further protection and dignity” to “a personal bond that is more enduring.” Here Kennedy quoted and cited Lawrence, linking his powerful ruling on private intimacy to the fundamental principles at stake in Windsor.

DOMA, however, prohibited federal recognition of these new marriages. It did so despite a “history and tradition” of treating “the definition and regulation of marriage” as “within the authority and realm of the separate States.” Far exceeding any previous federal regulation of marriage, DOMA ranged widely and crudely over one thousand unrelated federal benefits, stripping them from “a class of persons that the laws of New York … have sought to protect.” Drawing on his deep concern for federalism, Kennedy made clear that this singular act of disregard for state law raised gravely troubling questions in its own right.92

But the true heart of his opinion was its conclusion that DOMA violated fundamental rights to equality and dignity: “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.” Through DOMA, Kennedy observed, Congress intended to express “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo–Christian) morality.” DOMA wrote “inequality into the United States Code,” divesting “married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept.” This bare desire to harm a minority group, Kennedy wrote, rendered DOMA unconstitutional.

And as he explained, DOMA’s harms were substantial: “By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

In conclusion, Kennedy wrote, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

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Alito, Roberts, and Scalia dissented separately, accusing the Court of terrible error. Roberts and Scalia (joined by Thomas) first argued that the Court lacked the power to decide Windsor, arguing that Obama’s agreement with Windsor meant that there was no real “case” or “controversy” between the named parties.93 But all three dissenters went further and insisted that, on the merits, the Court should have upheld DOMA.

Alito directly attacked the notion that the Constitution protects any right to same-sex marriage. Reflecting his deep social conservatism and wariness of meddling with tradition, Alito emphasized not only the novelty of any such right but uncertainty about what might result from change to “ancient” family structures. “No one,” he argued, “can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.” Gesturing to debates among theologians, social scientists, historians, and philosophers, he described two competing visions of marriage—one based on “consent,” the other based on “procreation and biological kinship”—and concluded that “the Constitution does not codify either of these views.” Rather than deem traditionalists “bigots or superstitious fools,” he cautioned, “unelected judges” should acknowledge “the silence of the Constitution on this question.”

Roberts focused on DOMA, arguing that Congress had reasonably passed it to ensure “uniformity and stability” by retaining “the definition of marriage that … had been adopted by every State in our Nation, and every nation in the world.” Anticipating the likely next case, Roberts then emphasized that Windsor focused only on DOMA—a federal law—and did not address state-level bans on same-sex marriage. Highlighting Kennedy’s references to Congress intruding on the prerogatives of the sovereign states, the Chief proposed a reading of Windsor that would leave it largely speechless on the ultimate question of same-sex marriage.

While Roberts tried his hand at damage control, Scalia reprised the tone of his Lawrence dissent, warning that Windsor would lead inevitably to recognition of same-sex marriage rights. He even copied and lightly edited a section of Kennedy’s opinion to show just how readily it could be adapted to that purpose. Scalia didn’t mince words in condemning the majority for what he saw as a gross abuse of power: “Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves.” Celebrating the “plebiscites, legislation, persuasion, and loud voices” that marked the debate over same-sex marriage, Scalia mourned Windsor as “a tragedy for our democracy.” He also denounced the majority’s holding that DOMA reflected prejudice and animus: “[DOMA] did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence.… It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”

Few rulings are more uncertain than Windsor. Scalia saw a future foreordained, while Roberts saw a one-off ruling on federal power. Commentators are deeply fractured in their views of the decision. This was no doubt intentional: Kennedy drew on principles of federalism, equality, and dignity to produce an opinion appropriate to what he saw as the evolving needs of our time. While it cannot be doubted that Windsor takes a forceful step toward recognition of same-sex marriage rights, and several lower courts have already read it that way,94 the Court left the door open just wide enough to retreat from the field if it so chooses when it accepts another same-sex marriage case.

When Edith Windsor heard the news that her challenge to DOMA had succeeded, she burst into screams and sobs—and immediately cried out, “I wanna go to Stonewall right now!” Then she called a friend and said, “Please get married right away!” About an hour later, the phone rang. It was the President. When Windsor took the phone, she said, “Hello, who am I talking to? Oh, Barack Obama? I wanted to thank you. I think your coming out for us made such a difference throughout the country.”95

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These three sets of cases—Naim and Loving; Bowers, Lawrence, and Windsor; Fisher, Parents Involved, and Shelby County—instruct us that timing can be everything in asking the Court to enforce the Constitution’s promise of equal protection. How the Court sees history unfolding and what role it chooses for itself in that tale is sometimes more important than the facts of the particular case at hand. Tellingly, in a 2013 speech to an audience of law students, Kennedy mused aloud about the Court’s reluctance to render a marriage equality ruling that goes “too broad and deep” to let democracy run its course.96 But in the very next breath, he added that to him it seemed unjust for any court faced with a person suffering a real injury to turn the litigant away on the theory that he or she had the misfortune to arrive at court too soon.

At argument in the Proposition 8 case from California, Scalia posed an unusual question to Ted Olson, the lead attorney arguing for marriage equality: “I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage?” On the Roberts Court, the answer to that question still looms on the horizon.