Equal Protection, Class Legislation, and Colorblindness

Scholars and judges have long assumed that the Equal Protection Clause is concerned only with state action that has the effect of singling out certain persons or groups of persons for special benefits or burdens. Under the traditional doctrinal framework, state action that has this purpose and effect bears a certain burden of justification under the clause, a burden whose stringency varies, depending on the criteria used to define the class being singled out for special treatment and the importance of the interest affected. But state action that lacks such a "discriminatory effect" is not, on the traditional understanding, subject to equal protection challenge at all; if its rationality is to be challenged, it must be under the Due Process Clause instead. Over the years, the United States Supreme Court has often had difficulty deciding whether certain kinds of state action actually single out certain persons or groups of persons for special benefits or burdens.

But all of its great equal protection battles - over racial segregation, state legislative reapportionment, gender discrimination, and affirmative action - have been fought on the assumption that such a discriminatory effect is a necessary element of an equal protection claim. On this fundamental aspect of its equal protection jurisprudence, the Court has long displayed remarkable unanimity - that is, until the racial gerrymandering cases of the last few years.