When the U.S. Supreme Court struck down affirmative action in college admissions two years ago, the majority sanctimoniously celebrated its decision as a victory for racial equality and sneered at the notion of “a judiciary that picks winners and losers based on the color of their skin.”
But when it comes to immigration enforcement, the court was all too eager to pick winners and losers based on the color of their skin.
The hypocrisy is glaring, and the consequences are profound.
The court’s June 2023 decision in Students for Fair Admissions v. Harvard and v. University of North Carolina ruled that race-conscious admissions policies violated the equal protection clause of the 14th Amendment. Students must be “treated based on his or her experiences as an individual — not on the basis of race,” Chief Justice John Roberts wrote. The decision overturned decades of precedent, most notably 2003’s Grutter v. Bollinger, which had allowed race to be considered as one factor among many in a holistic admissions process.
In a powerful dissent, Justice Sonia Sotomayor warned that the ruling “cement[ed] a superficial rule of colorblindness as a constitutional principle in an endemically segregated society.” She argued that race-conscious admissions had helped equalize educational opportunities and promote diversity, a compelling interest long recognized by the court.
Earlier this month, the court issued another 6-3 decision in Noem v. Perdomo. Federal immigration agents in Los Angeles were using race — along with language, location and occupation — as a justification for stopping individuals. A lower court had barred these practices, citing the Fourth Amendment’s protection against unreasonable searches and seizures. But the Supreme Court reversed that order, allowing immigration agents to resume racial profiling.
Justice Brett Kavanaugh, writing in concurrence, argued that the government’s actions were justified by the “totality of the circumstances,” including the high number of undocumented immigrants in the area and the fact that many speak Spanish and work in low-wage jobs. Sotomayor again dissented, warning that the ruling effectively declared “that all Latinos, U.S. citizens or not, who work low-wage jobs are fair game to be seized at any time.”
The contradiction is stark. When a social advantage is at stake, the court insists on a colorblind Constitution — race must not be used to help historically marginalized groups gain access to elite institutions. But when the state is doling out anguish, race can be used to justify suspicion, detention and deportation. The same justices who decry racial classifications in college admissions are now endorsing them in law enforcement.
The Roberts Court rejects race-conscious policies when they aim to uplift — but embraces them when they serve punitive ends. Affirmative action is cast as unfair favoritism, while racial profiling is reframed as pragmatic enforcement. The message is clear: Race cannot be used to help you, but it can be used to target you.
The implications are chilling. Latino communities, already vulnerable to aggressive immigration tactics, now face the prospect of being stopped simply for speaking Spanish or working in landscaping. Meanwhile, Black and Brown students have lost a critical tool for accessing higher education and breaking cycles of poverty.
The court’s decisions reinforce systemic inequality under the guise of constitutional fidelity.
Furthermore, the court’s pretense to “colorblindness” ignores the lived realities of race in America. Structural racism doesn’t disappear because the law pretends not to see it. As Justice Ketanji Brown Jackson noted in her dissent, “deeming race irrelevant in law does not make it so in life.”
The Supreme Court has long been a battleground for civil rights. From Brown v. Board of Education to Grutter, it has acknowledged the need for race-conscious remedies to address historical injustice. But the current court seems more intent on dismantling those remedies than on confronting the injustices they were designed to fix.
In doing so, it sends a dangerous signal: that equality means treating everyone the same, even when their circumstances are vastly different. That justice means ignoring race, even when race is central to the injustice. And that the Constitution protects against racial advantage — but not against racial harm.
This is not neutrality. It is complicity.
And it demands a response — not just from lawyers and lawmakers, but from all of us who believe in a more just and inclusive society.
Marc H. Morial is president and CEO of the National Urban League and was mayor of New Orleans from 1994 to 2002. He writes a twice-monthly column for the Sun-Times.