In 1989, Thurgood Marshall, the first Black justice of the supreme court of the United States, wrote a powerful dissent to a landmark ruling that called into question how the court would discern race-consciousness in future cases. The City of Richmond v JA Croson Co asked the court to consider whether a municipal government can use race as a factor to diversify the city’s contractors to reflect its population, in this case by setting aside 30% of contracts for minority business enterprises (MBEs). Though half of the residents of Richmond, Virginia, were Black, only 0.67% of the city’s contracts had gone to MBEs because its prime contractors, like JA Croson, were not doing business with minority-owned firms.

In a 6-3 decision, the court ruled against the city of Richmond, with Justice Sandra Day O’Connor arguing that race-conscious laws like the percentage-based set-asides were too strict and couldn’t be directly tied to proof of past discrimination, even though the court had deemed them constitutional less than a decade prior. Justice Antonin Scalia took an even stricter view in his concurring opinion, that the government has no authority to consider race, even to remedy past discrimination, effectively calling for a colorblind” interpretation of the Equal Protection Clause of the 14th amendment – paradoxically asking the courts to ignore race when invoking an amendment that explicitly addresses race.

Scalia’s opinion announced a new post-civil rights conservative strategy that remains the playbook for dismantling multiracial democratic power till this day. It’s a tool of cherry-picked race consciousness in which conservatives claim to not see the relevance of race when it comes to correcting for past injustices, but have their vision conveniently restored for the false flags of reverse racism thrown by white Americans.

Marshall, for his part, saw the writing on the wall for how the court could undo a century of the hard-fought gains of the Black freedom struggle with the stroke of a “racial neutrality” pen. Nicknamed “Mr Civil Rights” in his early career, he was the famed NAACP attorney who led counsel in the landmark 1954 Brown v Board of Education. In his dissenting opinion on JA Croson, he warned against a court that rejected the distinction between race-conscious policies that corrected for racism and supposedly colorblind governmental stances that perpetuated and worsened it. “A profound difference,” he wrote, “separates governmental actions that themselves are racist, and governmental actions that seek to remedy the effects of prior racism or to prevent neutral government activity further perpetuating the effects of such racism.”

Even Marshall, though, may not have foreseen the most recent 6-3 decision in which the supreme court’s rightwing majority gutted the 1965 Voting Rights Act (VRA), for which Marshall was a principal architect and ardent defender after its passage. The majority decision in Louisiana v Callais, issued on Wednesday and authored by Justice Samuel Alito (the late Scalia’s ideological acolyte), has received immediate blowback for its overreach in “demolishing” the few remaining protections of the VRA. It has hard-launched a judicial agenda to roll back protections for Black voters, while exclusively reserving its race consciousness for thinly veiled white preference in the law.

Louisiana’s population is roughly one-third Black, and 62% of people are registered voters. In 2022, a group of Black Louisiana voters won their lawsuit in the lower courts to create a second majority-Black district out of the state’s six districts, based on extensive evidence that the existing districts were racially polarized and violated the VRA. That provision was protected by section 2 of the VRA, which preserved the right to draw majority-minority districts in places where widespread Jim Crow-era gerrymandering efforts diluted blocs of Black voters. But in Callais, the court ruled that the new 2024 map was unconstitutional because it thinned the power of overwhelmingly white Republican voters. In Louisiana, like much of the south, partisan lines for both candidates and voters are effectively racial lines, and are more correlated with race than any other demographic factor.

Alito attempted to minimize the seismic electoral consequences of the decision as a mere “update” to the VRA, not a full-on dismantling, even as red states like Alabama rushed to approve a Republican-advancing map within hours of the ruling. “Today’s decision renders section 2 all but dead letter,” Justice Elena Kagan wrote in her dissent. “The Court betrays its duty to faithfully implement the great statute Congress wrote,” she maintained, while further admonishing that the “decision will set back the foundational right Congress granted of racial equality in electoral opportunity”.

Marshall was accustomed to this kind of judicial racial hypocrisy. It was abundantly clear in 1896, for instance, when the Plessy v Ferguson decision spat in the eye of the Equal Protection Clause by upholding Jim Crow segregation as a “separate but equal” compliance with the law. But the full-on sleight of hand in Callais and the majority’s lack of interest in concealing their rightwing bias might have left Marshall blinking in incredulity. In a 36-page opinion, Alito made facile gestures towards the legal virtues of race neutrality, writing that “the Constitution almost never permits the Federal Government or a State to discriminate on the basis of race”, while simultaneously defending a decision that solely protects the power and interests of white voters.

In overturning the lower courts and ruling for the “non-African American” plaintiffs in Callais, the supreme court has openly considered race (that of white Republicans) in matters of partisan redistricting. At the same time, it has dismissed race as grounds for examining discrimination against Black Louisianans. Where JA Croson chipped away at the court’s capacity to consider current racial disparities as an outcome of past injustice, Callais has taken a wrecking ball to justice-oriented race consciousness. It’s a step in cherrypicking to satisfy a majority white and conservative bench’s already distorted ideology of what counts as racism.

Marshall foreshadowed Alito’s claims of a “post-racism” democracy and warned against signaling that racial discrimination was a bygone phenomenon no longer warranting constitutional protections. Ultimately, he understood the court’s selective race consciousness as a moral failing of the court. “I ... do not believe this Nation is anywhere close to eradicating racial discrimination or its vestiges,” he wrote in JA Croson.

Indeed, this supreme court has undone nearly every form of justice Marshall and Black freedom fighters assembled. It has covered its eyes to the cause of injustice, confirming Marshall’s foreboding: “The battle against pernicious racial discrimination or its effects is nowhere near won.”

• Saida Grundy is an associate professor of sociology and African American studies at Boston University, and the author of Respectable: Politics and Paradox in Making the Morehouse Man