For a nation founded on the “self-evident” proposition of human equality, we’ve got an odd way of showing it—particularly to women and people of color. In the last two years, the United States Supreme Court has stripped women of bodily autonomy and pretty comprehensively quashed efforts to combat institutional racism.
It would be a mistake to view these decisions as misapplications or misapprehensions of the Court’s view of equality. The Court knew exactly what it was doing. Justice Alito curtly dismissed the matter in Dobbs v. Jackson Women’s Health, explaining that the regulation of gender-specific medical procedures—and any resultant disparities—did not implicate the Fourteenth Amendment’s guarantee of equal protection unless some grotesque sex-discrimination (obviously, inapplicable to abortion) underlay the whole matter. And in Students for Fair Admissions v. Harvard, Chief Justice Roberts did not dispute the racial disparities persisting across American education, wealth, health, or political power. Rather, he called the remedy, race consciousness remedial efforts—that is, efforts—“odious to a free people.”
Our dissenting justices, however stalwart, only partially grasp the ideological disparity. In Dobbs, Justices Breyer, Sotomayor, and Kagan jointly explained the centrality of bodily autonomy to women’s dignity and access to American public life and admirably detailed the consequences of stripping it away. Similarly in Students for Fair Admissions, Justices Sotomayor and Jackson recounted the race-conscious remedial history of the Fourteenth Amendment and forecast how the end to affirmative action will reify the already startling wealth and education disparity between white and black America.
Yet they miss the bottom line. In both cases the dissents expound upon racial and gender disparities to a Court that both grasps them and does not see them as problems. That is, the Supreme Court in Dobbs and SFFA did not fail to apprehend gender or racial disparities. It saw them but did not care. Equality, to the current Court, does not merely shut its eyes to these disparities. It tolerates, indeed, mandates them. In opposition, the dissents simply assume otherwise.
Why? Why should we care—as a constitutional matter—about these disparities? Why should bathrooms be separated by gender yet racially integrated? Why should the law tolerate no racial distinctions in public accommodations yet allow racial cognizance in college admissions? What does women’s dignity have to do with democratic governance?
To my mind, the dissents don’t offer a satisfactory answer. For one, the Fourteenth Amendment’s broad text—“No State shall…deny to any person within its jurisdiction the equal protection of the laws”—offers little guidance, let alone an explanation of how it differs from the common law precept to treat like cases alike. For another, sure, the Amendment’s drafters understood the necessity of racial cognizance in remedial legislation. After all, the Civil Rights Act of 1866 extended to all the same rights as enjoyed by “white” citizens in contract and property. But the men who wrote that law turned around and denied women separate legal existence from their husbands, exterminated Native Americans across the West, and gave us Jim Crow racial apartheid. So history can’t get us all the way.
Instead, the dissents seem to rest substantially on the moral assumption that we should care about the plights of others and remedy historic wrongs regardless of personal culpability. I agree; my faith demands it. But I’m not content to so quickly peg constitutional doctrine to one’s particular morality. If our constitution must survive diversity of belief, why should this particular moral take prevail other than by force of votes or arms?
Stepping back, this isn’t a niche legal disagreement. Tens, if not hundreds, of millions of Americans on both sides of the aisle still view people of color, different faiths, different abilities, the poor, and the incarcerated as inherently subordinate beings. Just look at our racialized housing patterns and school resegregation rates. Look under the nearest overpass or read up on prison healthcare. And consider discussions of Islam in national politics, or our ongoing genocide in Gaza. The question lies at the center of our political debate.
So what does it mean that “all men are created equal?” What should we expect from the law’s equal protection? Do school integration and women’s bodily autonomy rest merely on good vibes? I hope not. What is equality good for?