What Goes Around

Over at the new Convictions blog, Richard Ford makes a point I hadn't thought about with regards to the development of conservative race jurisprudence:

The equal protection clause is now as likely, if not more likely, to block race conscious efforts to remedy racial injustice as it is to block racial discrimination as conventionally understood. And so ironically, making it difficult to establish an equal protection violation-- once a conservative position--may soon be in the way of conservative efforts to reverse and prohibit race conscious remedial policies.

There are three directions this can go. The first is a loosening of the standards, making it easier for both traditional civil rights plaintiffs to show proof of discrimination but also easier for those blocking efforts to remedy racial injustice. Observing the recent Snyder case, this is how Professor Ford sees things progressing. The second option is that the rules remain tight, and conservative advocacy groups find it harder than they initially suspected to undermine affirmative action and other such programs because the bar is set really high for proving intentional, specific discriminatory patterns.

The third option, of course, is that the bar is set low for those attacking racial remedies and high for everyone else. I won't say that's the most likely outcome, but it's not impossible either.