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This Article engages in a critical comparative analysis of the recent history and likely future trajectory of the Supreme Court’s constitutional jurisprudence in matters of race and religion to uncover new aspects of the racial project that Reggie Oh has recently called the “racial superordination” of whiteness—the reinforcing of the superior status of whites in American society by, among other things, prioritizing their interests in structuring constitutional doctrine. This analysis shows that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize the interests of whiteness and set those interests as the normative baseline in both areas of constitutional law. While the Court has increasingly moved toward an aggressive and religion-conscious “most favored nation” equality theory in the Free Exercise Clause context, its continued march toward mandating colorblindness is arguably moving toward something akin to a “least favored nation” equality theory for race and race consciousness in the equal protection context. Arguments can be made that the most favored nation approach should also be applied to race. Doing so would provide more doctrinal space for racial equality-enhancing government programs and call into question deeply entrenched aspects of the Court’s current affirmative action jurisprudence. The Court’s refusal to even hint at the possibility of such an approach points to a racial project of superordinating the interests of white Americans to be constitutionally protected from race-conscious interference with their dominant position in the racial hierarchy over the application of consistent constitutional principles.


Colloquium: New Visions of Civil Rights Lawyering
Michigan Law Review, Vol. 120, Issue 8 (June 2022), pp. 1629-1666