Sotomayor, J., dissenting
colorblind Constitution,” but his historical analysis leads to the inevitable conclusion that the Constitution is not, in fact, colorblind. Ante, at 2. Like the majority opinion, Justice Thomas agrees that race can be used to remedy past discrimination and “to equalize treatment against a concrete baseline of government-imposed inequality.” Ante, at 18–21. He also argues that race can be used if it satisfies strict scrutiny more broadly, and he considers compelling interests those that prevent anarchy, curb violence, and segregate prisoners. Ante, at 26. Thus, although Justice Thomas at times suggests that the Constitution only permits “directly remedial” measures that benefit “identified victims of discrimination,” ante, at 20, he agrees that the Constitution tolerates a much wider range of race-conscious measures.
In the end, when the Court speaks of a “colorblind” Constitution, it cannot really mean it, for it is faced with a body of law that recognizes that race-conscious measures are permissible under the Equal Protection Clause. Instead, what the Court actually lands on is an understanding of the Constitution that is “colorblind” sometimes, when the Court so chooses. Behind those choices lie the Court’s own value judgments about what type of interests are sufficiently compelling to justify race-conscious measures.
Overruling decades of precedent, today’s newly constituted Court singles out the limited use of race in holistic college admissions. It strikes at the heart of Bakke, Grutter, and Fisher by holding that racial diversity is an “inescapably imponderable” objective that cannot justify race-conscious affirmative action, ante, at 24, even though respondents’ objectives simply “mirror the ‘compelling interest’ this Court
at 395–402 (opinion dissenting in part). Justice Marshall’s reading of the Fourteenth Amendment does not support Justice Kavanaugh’s and the majority’s opinions.
