In 1989, Thurgood Marshall, the first Black justice of the supreme court of the United States, wrote a powerful dissent to a landmark ruling that called into question how the court would discern race-consciousness in future cases. The City of Richmond v JA Croson Co asked the court to consider whether a municipal government can use race as a factor to diversify the city’s contractors to reflect its population, in this case by setting aside 30% of contracts for minority business enterprises (MBEs). Though half of the residents of Richmond, Virginia, were Black, only 0.67% of the city’s contracts had gone to MBEs because its prime contractors, like JA Croson, were not doing business with minority-owned firms.
In a 6-3 decision, the court ruled against the city of Richmond, with Justice Sandra Day O’Connor arguing that race-conscious laws like the percentage-based set-asides were too strict and couldn’t be directly tied to proof of past discrimination, even though the court had deemed them constitutional less than a decade prior. Justice Antonin Scalia took an even stricter view in his concurring opinion, that the government has no authority to consider race, even to remedy past discrimination, effectively calling for a colorblind” interpretation of the Equal Protection Clause of the 14th amendment – paradoxically asking the courts to ignore race when invoking an amendment that explicitly addresses race.
