The Supreme Court says colleges can’t consider race. But ICE can.

On October 15, the Supreme Court will hear oral arguments in a case that threatens to reshape American politics by making elected leaders whiter and locking communities of color out of power. The case concerns the constitutionality of the 1965 Voting Rights Act’s requirement that minority communities have an equal opportunity to elect representatives of their choice—a guarantee that has helped give these communities a political voice for 60 years. The question the justices will answer is whether race can be weighed for this purpose when states and localities draw political maps, an essential part of creating so-called minority opportunity districts. But the court appears ready to end the use of race in redistricting. The perverse result, of course, will be to erase minority voting power.

There are many reasons the writing is on the wall, including the history of the case, in which the justices specifically made this the central question of oral arguments—essentially creating a judicial vehicle for them to eliminate race as a permitted factor. (Of course, race will remain a factor in redistricting, except it will be used to quietly preserve white Republican dominance, not to ensure opportunity for communities of color to have a political voice.) Such a decision would also be in line with years of opinions from the court’s GOP appointees declaring unconstitutional virtually any consideration of race in efforts promote racial equality.

Take Chief Justice John Roberts, who, in a 2023 decision on Harvard’s admissions policies, wrote that the “‘core purpose’ of the Equal Protection Clause” is to do away “‘with all governmentally imposed discrimination based on race.’” In that same case, which ended affirmative action in higher education, he continued: “Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies ‘without regard to any differences of race, of color, or of nationality’—it is ‘universal in [its] application.’” There are only two exceptions, Roberts added, where race can be considered: remedying specific past discrimination and avoiding imminent violence, such as a prison race riot.

Justice Clarence Thomas writes constantly that the Constitution is colorblind. “Any governmental consideration of race—even as a second-order consideration—triggers strict scrutiny,” he wrote last year. “Using race merely as a ‘tip’ or a ‘plus’ factor in college admissions does not excuse a university from satisfying strict scrutiny.” (Strict scrutiny requires the government to prove that its actions serve a “compelling government interest” and are “narrowly tailored” to achieve that interest—a high bar that many challenged policies fail to clear.) In the affirmative action case, Thomas’ concurrence decried “the tremendous harm inflicted by sorting individuals on the basis of race” because “all racial stereotypes harm and demean individuals.” Like Roberts, Thomas argued that the only justification for stereotyping and dividing based on race would be an emergency action needed as “a bulwark against anarchy, or to prevent violence.”

And yet, Roberts and Thomas were silent this week as the court voted to allow the Trump administration to detain suspected immigrants based in part on the color of their skin or whether they spoke English with an accent. In a shadow-docket order, Republican appointees on the court took the extraordinary step of blocking two lower court orders that had halted such profiling. The new ruling allows the government to resume using racial profiling in its expansive immigration raids across greater Los Angeles. The three Democratic appointees dissented. Justice Brett Kavanaugh was the only member of the conservative wing to publicly defend the court’s actions in his own concurrence.

As I wrote on Monday, Kavanaugh’s arguments were weak, so it is understandable that it was easier for his allies on the court to remain silent. But their silence is deafening. How will the court square its decision to let ICE agents snatch people at bus stops or low-wage jobs or simply grab them off the street because of how they look or talk, while banning the consideration of race in college admissions and—almost certainly in the coming months—when divvying up political representation?

The throughline, of course, is that the use of race to improve political and economic outcomes for minorities is intolerable, but using race as a proxy for who does not belong in this country is permissible. Logically, the two cannot be reconciled with the ideal of a colorblind Constitution that the six GOP appointees claim to believe in. But there is a logical explanation: The court is forging an America where weighing race can be used to harm minorities, but not to protect them.