The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the concept of dignity in order to redress discrimination against disadvantaged classes. Other opinions make appeals to dignity in order to protect or recognize fundamental rights or liberties for marginalized groups. These rulings—together with progressive uses of dignity in foreign constitutional law and in human rights and humanitarian law—have led some scholars to promote dignity-based litigation as an alternative to the Court’s formal equality doctrine. Advocates of racial justice, however, should approach these arguments with extreme skepticism. Current doctrine relies upon dignity to invalidate race-based remedies and civil rights statutes. The Court, however, does not recognize the stigmatizing nature of de facto discrimination. Equal protection doctrine extends greater protection to privileged classes than to disadvantaged groups. Judicial ideology, rather than lack of a persuasive theory of equality, explains these results.
Darren Lenard Hutchinson, Undignified: The Supreme Court, Racial Justice, and Dignity Claims, 69 Fla. L. Rev. 1 (2017), available at http://scholarship.law.ufl.edu/facultypub/782/