It’s said that a rising tide lifts all boats. But what happens if one of those boats is left riddled with holes, while another is patched and repainted? The tide may lift them both—but one will rise as a result, and the other will sink.
This is the inevitable outcome of the current U.S. Supreme Court’s approach to interpreting the Constitution in what is considered a colorblind manner. Under the Court’s colorblind jurisprudence, the government should apply laws equally to all individuals without considering or making distinctions based on race or the history of racism in this country.
Unfortunately, centuries of racist policymaking have resulted in the need for direct intervention. Some laws must inherently be focused on race to address harms of the past. While a truly equitable approach would allow for laws that explicitly confront past harms based on race, the Court’s colorblindness all but ensures that those descended from formerly enslaved and disenfranchised people are at risk of being continually left behind, left to sink in the metaphorical leaky boat.
While a neutral approach can sound fair, it oftentimes is anything but. Historically, many Constitutional decisions were attributed to originalism, a method of interpretation that supposedly honors the original intention of the drafters of the Constitution and the original meaning of the document. Debates over jurisprudence grew during the 1980s, led by former Justice Antonin Scalia. The most common debates within the Court were between justices with an originalist approach and justices who subscribed to a textualism approach, focusing their interpretations on the plain, literal meaning of the words on the page. While the originalists looked to history, requiring that laws be interpreted based on what they would have meant to the public at the time they were adopted, the textualists want to ensure their decisions are viewed as true to the literal letter of the law.
Current Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett actively make clear their disdain for the inclusion of historical context or intent. These justices often point out how while they may agree with an opinion of the Court on an issue, it had nothing to do with any outside historical context. An example of this is in Biden v. Nebraska in which Barrett agreed with the decision to not allow then President Joe Biden to cancel student debt, but she wrote in her concurring opinion that it was purely based on the text itself, and not any outside circumstances. She explained her view of plain text reasoning using the analogy of a parent leaving a credit card for a babysitter and saying to make sure the kids have fun. Her argument was that the parent’s statement most likely means ice cream and a movie, not permission to take a two-day road trip to an amusement park with that credit card. In general, and in her concurrence, she points out the only time context is helpful is to get to the most plausible plain text reading. So it may be acceptable to think about who wrote something, but not outside factors such as Congressional speeches or political pressure when deciding the meaning of text.
In its 2022 decision in Dobbs v. Jackson Women’s Health Organization, the conservative majority eliminated the federal Constitutional right to abortion and overturned Roe v. Wade, arguing that the Constitution and Fourteenth Amendment originally made no reference to abortion and, therefore, did not explicitly protect these rights. Kagan’s dissent captured the trap perfectly: A Constitution written by men who wouldn’t let women vote, applied as written by those men would have applied it, can never deliver rights those men refused to recognize. The same can be extended to the rights of Black and brown people.
The faulty logic of originalism was on full display in the closing days of the Court’s most recent term earlier this summer. On June 30, the Supreme Court handed down its landmark decision in Trump v. Barbara, striking down an Executive Order seeking to unilaterally terminate birthright citizenship for children of undocumented immigrants. The civil rights establishment immediately celebrated. Headlines heralded it as a triumphant defense of the Fourteenth Amendment, a definitive boundary drawn against executive overreach.
But we must refuse to mistake survival for a victory. A closer look at the fragile 5-4 majority reveals a terrifying reality: The fundamental right to exist for tens of millions of nonwhite Americans hung by a single, volatile judicial thread. Chief Justice John Roberts’ majority opinion relied on a textual and historical defense of the Citizenship Clause, but the dissenting opinions mounted a frontal, originalist attack. Justice Clarence Thomas, who is Black, went so far as to argue that birthright citizenship was a race-conscious remedy meant only for “freed slaves.” Looking at past opinions drafted by this Court, directly responding to slavery is seemingly the one and only time race-conscious laws have been viewed as applicable.
When the Constitutional right to exist in your own homeland is subject to a one-vote margin, the system is not working. It is a roulette wheel. In this case, the Court selectively preserves basic rights in a high-profile case to maintain its cracking veneer of institutional legitimacy, while simultaneously using so-called racial neutrality to gut the structural protections keeping our boats afloat.
To understand how colorblindness is actively weaponized to hurt Black and brown people, we must look at how the Court handles systemic oppression. True equity requires us to see race because the systems of harm always see race. But by declaring the Constitution colorblind, the Court has green-lit a passive, hands-off approach to ongoing discrimination.
We saw the devastating consequences of this logic in the April 2026 decision Louisiana v. Callais. In a brutal 6-3 ruling, the Court effectively eviscerated Section 2 of the Voting Rights Act. The conservative majority ruled that states can dismantle majority-Black Congressional districts and dilute Black voting power, provided they claim their motivation was “partisan advantage” rather than explicit racial animus. All a state must do to undercut Black political power is simply say that a redrawn map was based on political leanings.
By pretending that race and political affiliation can be neatly separated, the Court has provided voting district mapmakers with a bulletproof, legally sanctioned alibi for spreading Black voters across multiple districts, ensuring they will always be a minority in each one. Under the guise of “race-neutral” political strategy, the state is permitted to erase Black political representation. It is the ultimate weaponization of neutrality: The law pretends to be blind, but the outcome is surgically precise.
In online postings and thinkpieces bemoaning those who opposed this ruling, the common refrain was that no one was taking away the vote because all people were still eligible.
This judicial philosophy, however, has rapidly gone beyond the courts and bled into the administrative state. Emboldened by the Court’s colorblind crusade, federal agencies are now dismantling the very tools designed to protect workers of color.
In early July 2026, the Justice Department’s Office of Legal Counsel issued a sweeping memorandum aiming to eliminate “disparate impact” liability under Title VII and Title VI. Under actual civil rights law and not whatever is coming out of the current Department of Justice, disparate impact allowed workers and advocates to challenge employment or housing practices that, while neutral on their face, disproportionately harmed minority groups.
Now, the Trump Administration argues that unless a plaintiff can somehow get inside the mind of a malevolent actor to prove intentional racial hatred, any race-neutral, merit-based employment policy is presumptively lawful. By removing the safe harbors for race-conscious hiring and minority vendor pipelines, the federal government has turned the law on its head. A law passed to explicitly dismantle systemic discrimination has been hijacked to defend it, protecting corporate entities under the banner of colorblind meritocracy.
Nowhere is this colorblind trapshooting more devastatingly institutionalized than in the Supreme Court’s landmark 2023 decision in Students for Fair Admissions v. Harvard. Writing for the majority, John Roberts declared that university admissions programs must not use race as a factor, asserting that the Equal Protection Clause requires absolute, colorblind neutrality. But as Justice Ketanji Brown Jackson brilliantly wrote in her dissent, deeming race irrelevant in law does not make it so in life. By outlawing the conscious consideration of race to remedy centuries of systemic educational exclusion, the Court’s colorblind logic treats the curative medicine of affirmative action as identical to the original disease of segregation. The logic there was that affirmative action itself, which was developed as a response to racism and the segregated workplace and classroom is an equivalent wrong being impressed upon white people. It behaves as though a student’s race has no bearing on their access to quality schooling, clean air, or intergenerational wealth, while leaving elite legacy preferences, which overwhelmingly favor wealthy white applicants, completely untouched. The Harvard decision is the ultimate litmus test: an elegant, high-minded decree that demands we ignore the systemic holes in the Black and brown boats, ensuring it continues to sink under the weight of historical inequality while the polished yachts sail seamlessly ahead.
The question remains: How can we meaningfully address the Court’s weaponization of colorblindness against people of color? Unfortunately, we cannot litigate our way out of a room where the walls are structurally designed to close in on us. To continue begging a Court captured by an ultraconservative 6-3 supermajority for temporary concessions is an act of political surrender. We must move past the defensive posture of hoping the Court behaves and focus instead on dismantling the structural bias of the institution itself.
The solution is not to wait for the next vacancy; the solution is to change the size of the board. Supreme Court expansion is the only mechanism of structural repair capable of breaking the conservative supermajority’s veto on progress. The Constitution is entirely silent, as it never once mentions the current number of nine justices, which is an arbitrary threshold that has changed multiple times throughout U.S. history to reflect the growth of our nation.
Congress possesses the clear, unquestionable Constitutional authority to expand the bench. According to comprehensive research tracked by the Brennan Center for Justice, structural changes to the federal judiciary have historically been utilized during moments of profound Constitutional crisis. During Reconstruction, Radical Republicans (remember they flipped later to uphold racism) altered the size of the Supreme Court to prevent a hostile, southern-aligned bench from dismantling the abolitionist agenda and the nascent protections of newly-freed Black Americans.
Today, we face a modern need for judicial redemption, a way to rightsize the current anti-democratic flaws within the current court system. One possibility towards achieving this would be expanding the Supreme Court to, say, thirteen justices (matching the thirteen federal circuits) enabling diluting of the outsized, dictatorial veto power of a single swinging judicial vote. Unpacking the Court is not a partisan trick; it is an act of democratic reclamation. It strips a radical, originalist supermajority of its monopoly on Constitutional meaning and injects modern ideas of equity into the highest court in the land.
Until we build the collective political will to repair the structural design of the court, the tide will continue to rise while our boats are left to sink.