The United States has a long and somewhat conflicted history of espousing egalitarian values and yet tolerating a certain level of subordination of particular groups to a greater or lesser extent at the same time. Like many countries, it struggles with reconciling the goals of equality, pluralism, and liberty, and the balance has been struck differently at different times. In the current wave of such efforts, the Supreme Court is marking an increasingly formalist approach to the question of discrimination, while Congress appears to be pushing a slightly more substantive approach to discrimination.
The commitment to racial equality is very present in the public consciousness and yet still contested enough that there are gaps in consensus on the content of the norm. Part of the reason for this lack of consensus is that the issue of race discrimination in employment has not been in the forefront of public debate the way it had been in earlier years. At the end of its most recent term, the United States Supreme Court issued its first decision in decades addressing the content of the norm against race discrimination in employment in Ricci v. DeStefano. The Court took a decidedly formalist turn, instituting a color-blind standard to define discrimination under Title VII at least in some circumstances. This article analyzes that decision.