Caste-ing and Recasting Race in Equal Protection Jurisprudence

Vinay Harpalani & Magdalene Bernier

In this Essay, we analyze how the concept of “caste” has influenced the U.S. Supreme Court’s race-based equal protection jurisprudence. Even before the ratification of the Fourteenth Amendment, advocates such as Charles Sumner appealed to caste analogies to argue for rights for Black Americans. The “stigma of caste”—a prominent harm of Jim Crow laws— was rejected by the majority in Plessy v. Ferguson but articulated in Justice Harlan’s Plessy dissent. The notion of caste also undergirded the origin of strict scrutiny and the ruling in Brown v. Board of Education. However, Brown defined the harm of school segregation not primarily from the stigma of caste—the social meaning of segregation—but from “feeling of inferiority”—the internal self-esteem of Black children. The social science evidence cited to support this feeling of inferiority was widely critiqued, leading to ambiguity in defining the harm of racial classifications. This ambiguity came to bear in challenges to affirmative action policies intended to benefit subordinated groups, beginning with DeFunis v. Odegaard. Justice William Douglas’s DeFunis dissent applied “stigma and caste” to affirmative action policies. Eventually, the Court resolved this ambiguity by adopting an anticlassification stance. While various Justices, such as Sandra Day O’Connor and Clarence Thomas, frame anticlassification differently in their equal protection opinions, the majority of the Court has clearly moved toward it. Nevertheless, this shift to anticlassification has not been without dissent. Most recently, Justices Sonia Sotomayor and Ketanji Brown Jackson have articulated antisubordination stances in their equal protection opinions. We illustrate how in different contexts and for different ends, different Justices use the term “caste” in different ways that support different theories of equal protection, as part of the Court’s gradual shift towards anticlassification and the resistance to that shift.