After the Supreme Court invalidated the use of race in college admissions in SFFA v. Harvard, NYT columnist Jamelle Bouie wrote a column questioning the legacy of Justice John Marshall Harlan. The Supreme Court majority's reliance upon language from Harlan's opinion, Bouie suggested, might not be as anomalous as some of the Court's critics would like to think. Though credited with the claim that "the Constitution is colorblind," Harlan was no anti-racist.
The language of colorblindness that Roberts and Thomas use to make their argument comes directly from Justice John Marshall Harlan's lonely dissent in Plessy v. Ferguson, the decision that upheld Jim Crow segregation. "There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens," wrote Harlan, who would have struck down a Louisiana law establishing "equal but separate" accommodations on passenger railways.
But there's more to Harlan's dissent than his most frequently cited words would lead you to believe. When read in its entirety, the dissent gives a picture of Harlan not as a defender of equality, but as someone who thinks the Constitution can secure hierarchy and inequality without the assistance of state law. It's not that segregation was wrong but that, in Harlan's view, it was unnecessary. . . .
Harlan's brief for the colorblind Constitution rested, within the text, on a belief in the inherent superiority of white Americans and the basic inferiority of their Black counterparts. "Blacks and whites could be 'equals before the law,'" notes Hutchison, "but that did not mean they were equals in any other respect — in the social realm, racial inequality would rule 'for all time' if the nation remained blind to race 'in view of the Constitution.' "
This column prompted an extensive reply from Peter Canellos, author of The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero in Politico. His reply begins:
