UC Irvine Law Review

It is a myth that equal protection doctrine protects women and people of color. It is a
myth, first, in the sense that it is a fiction. Although the Supreme Court claims to enforce the
equality rights of all, it is unwilling to combat the contemporary inequality of women and
people of color. It is also a myth in a second sense: it is a political myth or legitimating story.
The Court relies on the fiction that it protects women and people of color to justify a broad
new vision of equality for religious conservatives that, perversely, is not available to women
and people of color. More perverse, the Court invokes this new vision of equality to invalidate
federal, state, and local laws that do real work to promote race and gender equality.

Understanding the reality of equal protection doctrine clarifies debates about the
Supreme Court’s power. The Court’s present power over constitutional equality enforcement
depends, in large part, on the claim that the Justices have a superior capacity and willingness
to protect minority rights. While the myth of equal protection bolsters this defense of the
Supreme Court’s power, the reality of equal protection contradicts it. It shows that the Court
does not protect minority rights evenhandedly but instead subordinates the rights of minority
groups it disfavors to the rights of minority groups it favors. This selective protection and
subversion of minority rights cannot justify the Court’s continued displacement of democratic
will. On the contrary, it reveals a democratic legitimacy problem with this power that
invites reform.