This chapter examines the Supreme Court’s historically evolving interpretation of the Equal Protection Clause, including its recent embrace of the view – initially uttered by a solitary dissenter in an 1896 decision in the case of Plessy v. Ferguson – that “[o]ur Constitution is color-blind.” In equal protection cases, the Court has rarely claimed originalist support for its decisions, even when effecting sharp changes of course, as in its iconic decision in Brown v. Board of Education (1954). In a recurring pattern, the Court’s leading equal protection decisions have condemned forms of discrimination –– first on the basis of race, then sex, and then sexual orientation –– only when public opinion began to view them as unjustifiably bigoted. This chapter analyzes the Court’s recent decision to invalidate practices of affirmative action in higher education that prior decisions had permitted for more than forty years. It also surveys a branch of equal protection doctrine that strictly scrutinizes deprivations of rights that the Court deems “fundamental” under the Equal Protection Clause, centrally including voting rights. It explains continuities, but also revealing disparities, between the approaches to voting rights of the liberal Warren Court, on the one hand, and the conservative modern Court, on the other.

This chapter synthesizes the unifying theme across the different domains by mapping each conflict onto the egalitarian–libertarian debate: does autonomous constituent self-rule demand ensuring that all constituents enjoy a baseline substantive opportunity to contribute to public governance, or require noninterference with the application of private power and constituent preferences (including by powerful or privileged constituents who will enjoy disproportionate practical influence over politics)? The Conclusion also describes the two related trends in current Supreme Court lawmaking that threaten contestation over freedom. There is the threat – most clearly expressed in Bush v. Gore – that purely tribal partisanship will overdetermine election law outcomes and displace rather than frame the debate over freedom. Second, the parallel rise of the use of summary modes of disposition further erodes the opportunities for philosophical engagement by the bench.