In Constitutional Colorblindness and the Family, Katie Eyer brings to our attention an intriguing contradiction in the Supreme Court’s equal protection jurisprudence. Far from ending race‐based family law rules with its 1967 decision, Loving v. Virginia, the Court has ignored lower courts’ decisions approving official uses of race in foster care, adoption, and custody decisions in the last half century. Thus, as Eyer observes, “during the same time that the Supreme Court has increasingly proclaimed the need to strictly scrutinize all government uses of race, family law has remained a bastion of racial permissiveness.”
Scholars who oppose race‐matching in the family law context object to the lower courts’ failures to implement the colorblind mandate that the Supreme Court has set forth in its affirmative action decisions. Eyer adds that the Supreme Court itself has contravened its constitutional colorblindness narrative by deliberately failing to require strict scrutiny in family law decisionmaking. The Justices carefully crafted their opinion in Palmore v. Sidoti—a child custody case—to avoid constitutionally proscribing other official uses of race in child placement decisionmaking, especially in adoption cases. Furthermore, the Court has denied certiorari in family law cases where lower courts blatantly defied the principle of constitutional colorblindness. Although the Justices have yet to explicitly approve race‐based rules in the family law context, their actions and archival Supreme Court documents reveal a sub rosa divergence from their expressed colorblind principles.
What explains this stark dichotomy between the Supreme Court’s equal protection jurisprudence in the affirmative action context and the family law context? I argue that, after examining the racial politics underlying decisions made by the Court’s race conservatives, their approaches to race in public and private realms are not as contradictory as they first appear.