So it might surprise you to hear that battles about race and
the equal protection clause have continue to occupy the court in recent years.
In 2005, there was a pair of very important decisions.
Another one in 2007.
One just last year in 2013.
What are those about?
Well, it turned out that Brown was the end of one struggle and
the beginning of another, because after deciding that excluding people from
school because of their race was unconstitutional, the Supreme Court
started grappling with the issue of when race could be used to include.
What this struggle boils down to is a clash between two different ways of
understanding the equal protection clause.
I'm going to call them the anti-subordination view and
the anti-classification view.
Anti-subordination says oppression is bad.
We should worry about laws that injure or stigmatize certain vulnerable groups,
politically weak groups typically, racial minorities in particular.
Legislatures might enact laws that hurt these groups out of hostility because they
actually want to hurt them or
out of indifference because they just don't care about their interests.
The basic equal protection problem from the anti-subordination perspective
is a lack of equal concern and respect.
The government is taking some people's interests more seriously than others.
It's giving some people's interests more weight.