Among the most high-profile decisions issued by the United States Supreme Court last month was the conservative majority's long-anticipated 6-3 opinion ending race-conscious admissions in virtually all public and private colleges. Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 143 S. Ct. 2141 (June 29, 2023). It did so on the grounds that the Fourteenth Amendment's Equal Protection Clause mandates colorblindness when admitting or rejecting potential students. Drawing on Justice Harlan's lone dissent in Plessy v. Ferguson (1898), the majority opinion (and concurrences) repeatedly emphasized that, although much of American society attributes meaning to racial identity and diversity, seventy years of Supreme Court jurisprudence has established — as a bedrock principle — a colorblind Constitution.
Chief Justice Roberts wrote the majority opinion with his trademark clarity. His foundational premise is that the Constitution permits no "distinctions of law based on race or color."[i] The "clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States."[ii] Rejecting any distinction between odious and benign racial discrimination, he wrote, "Eliminating racial discrimination means eliminating all of it."[iii]
The majority recognized that the constitutional rule against using race is not absolute, but any "exception to the Constitution's demand for equal protection must survive a daunting two-step examination known . . . as 'strict scrutiny.'"[iv] A permissible use of race must further a "compelling governmental interest" and, if it does, be "narrowly tailored," i.e. "necessary," to achieve that interest.[v]. Beyond college admissions, the "only two compelling interests that permit resort to race-based government action" are (1) "remediating specific, identified instances of past discrimination that violated the Constitution or a statute" and (2) "avoiding imminent and serious risks to human safety in prisons, such as a race riot."[vi]
Crucially, according to the Chief Justice, colleges' "effort to alleviate the effects of societal discrimination is not a compelling interest."[vii] (emphasis added). Characterizing the rules upholding constitutional colorblindness as "defining statements of law," the majority held that colleges could simply no longer justify considering race in the admissions process.[viii]
In dissent, Justice Sotomayor countered that the majority's opinion "cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter."[ix] She reasoned that society "is not, and has never been, colorblind."[x]
Similarly dissenting, Justice Jackson blasted the majority for its "let-them-eat-cake obliviousness."[xi] Faulting its critique of the "unfairness" of considering race in admissions as ignoring "both history and reality in ways too numerous to count," she summarized that the "country has never been colorblind."[xii] She explained that "deeming race irrelevant in law does not make it so in life."[xiii]
The opinions from five different Justices cover hundreds of pages that my short synopsis here cannot come close to capturing. They are all well worth reading in full. But among the myriad profound issues that the opinions tackle, one point caught my eye. Justice Sotomayor saw a silver lining in the fact that diversity "is now a fundamental American value" and the "pursuit of racial diversity will go on."[xiv] But how will it proceed in Maryland's appellate courts in light of this decision?
For Maryland's appellate courts, it is a fundamental value that the judiciary and the appellate bar should be racially diverse and inclusive. It is also undeniable that historically it has not been so. Thurgood Marshall attended Howard University Law School because the University of Maryland Law School refused to admit Black applicants. Maryland's Supreme Court did not have a Black (or female) Justice until the late 1970s. The ethnic (and gender) diversification of the judiciary and the appellate bar to better reflect the State that they serve has overwhelmingly been viewed a good thing. Will efforts to continue this progress (beyond merely removing explicit race-based barriers to access) now conflict with a constitutional rule against colorblindness?
As just one example, consider judicial appointments. When vacancies arise on the Maryland appellate courts, the governor appoints the new jurist—and the process is not "colorblind." Typically, a list of nominees, drawn from declared candidates who want to be considered, is provided to the governor, who chooses from the list. When former Governor Larry Hogan (R) appointed the two replacements for retiring Maryland Supreme Court Chief Justice Getty and Justice McDonald, he was twice given initial lists containing only white candidates. Both times, he asked the judiciary to re-advertise the high-court opening to produce more racially diverse candidates because "the judiciary should reflect the diversity of the citizens it judges and serves."[xv]
This process yielded the candidacy and appointment of Justice Angela Eaves, whom the Daily Record celebrated as "Panamanian born and Black" and "the first Hispanic judge on the Court."[xvi] More important, no one faulted the Governor for objecting to selecting a Justice from an all-white list of well-qualified judicial candidates or expressing that the judiciary should reflect Maryland's diversity. Diversity, as Justice Sotomayor recognized, is now "a fundamental American value."
So what happens now when the Governor, or the Baltimore City Police Department, or a private law firm states that it wants its judges, police officers, and attorneys to reflect the diversity of Maryland or its constituents? Does considering the benefits of representation and racial diversity or publicly recognizing them as desirable now set the stage for a constitutional lawsuit? For Chief Justice Roberts and the concurring Justices, State actors would presumably skate on thin ice if they were to tout the value of racial diversity when hiring. And businesses promoting a more racially diverse workforce—even in an overwhelmingly white company or profession serving a much more diverse population—would risk litigation for not being "colorblind" in their hiring or promotion practices. It's hard to imagine how, in a country that "has never been colorblind," Marylanders can possibly become so when striving to ensure that our appellate courts and other law-enforcement apparatus are open and inclusive.
[i] 2023 U.S. Lexis, at *28.
[ii] Id. at *33-34.
[iii] Id. at *34.
[iv] Id.
[v] Id. at *34-35
[vi] Id. at *35.
[vii] Id. at *61.
[viii] See id. at *62.
[ix] Id. at *194-95.
[x] Id. at *193.
[xi] Id. at *311.
[xii] Id. at *284.
[xiii] Id. at *311.
[xiv] Id. at *282-83.
[xv] See Daily Record, "Hogan's call for diverse high court applicants gets answered again" (Dec. 1, 2021) (quoting Hogan's spokesperson).
[xvi] See Daily Record, "Md. high court ranks high in gender, ethnic diversity, report finds" (June 29, 2022).
Derek Stikeleather is Chair of Goodell DeVries's Appellate Practice Group. He practices primarily in appellate advocacy and complex litigation, often in commercial disputes or defending product liability, medical malpractice, and class action claims. He can be reached at dstikeleather@gdldlaw.com.
This post originally appeared on the Maryland Appellate Blog, the blog of the Maryland State Bar Association Litigation Section.
