It is a pleasing irony that the woman Joe Biden picked for the Supreme Court because of her race and sex has now written an opinion for a unanimous court decision that actually brings us back a bit closer to a color-blind Constitution. That goal was not explicitly acknowledged in Justice Ketanji Brown Jackson’s opinion, but it was strongly implied in a concurring opinion by Justice Clarence Thomas, the Court’s other African-American Justice.

The case, Ames v. Ohio Department of Youth Services, ostensibly concerned itself with a fairly arcane problem in the interpretation and application of what lawyers call Title VII, a provision of our civil rights law that bars employers from intentionally discriminating against employees on the basis of race, color, religion, sex, or national origin. The Supreme Court has construed the word “sex” also to mean “sexual orientation,” and it was a claim for discrimination on that basis that was before the Court.

Marlean Ames, who is heterosexual, claimed that she was denied a promotion and then demoted by her employer in favor of a lesbian woman and a gay man. Two federal courts then ruled against Ames because she had failed to demonstrate “background circumstances” showing that the Ohio Department of Youth Services was “that unusual employer who discriminates against the majority.”

The “background circumstances” rule is a judge-invented procedure that applies only to claims asserted by members of a majority, and might have been satisfied, said those lower courts, by a showing that either the hiring decisions were made by a gay person or that there was pattern of discrimination against other heterosexuals by Ames’s employer.

In an almost startling application of common sense, and even though there were four other federal circuits that had embraced the “background circumstances” rule, Justice Jackson noted that Title VII itself did not codify such a rule, and thus the text of the statute, and, indeed, prior Supreme Court precedent, did not support it. Accordingly, writing for the Court, Jackson ruled that the case must be sent back to the trial court, which could no longer demand proof of “background circumstances,” before Ames could prevail. Ms. Ames thus has not won her case, but she may now win if she can show that in her individual case she was rejected simply because of her sexual orientation.

As pleasing as the Court’s unanimity in doing the right thing was, even more satisfactory was Thomas’s concurring opinion in which he lamented “judge-made doctrines” which “distort the underlying statutory text.” Justice Thomas condemns the “background circumstances” rule as it applies only to majority group members and because this is a violation of the 14^th Amendment’s guarantee of the “equal protection” of the laws. He notes that the application of the “background circumstances” rule in the context of discrimination based on race “enshrined into Title VII’s antidiscrimination law an explicitly race-based preference.” “Such a rule,” Thomas wrote, “is undoubtedly contrary to Title VII and most likely violated the Constitution, under which ‘there can be no such thing as either a creditor or a debtor race.’”

Thomas should thus be read as repudiating the notion, current in the academy and among many on the left, that ours is a society in which there is “systemic racism.”  Indeed, in a footnote Thomas disparagingly noted that “American employers have long been ‘obsessed’ with ‘diversity, equity, and inclusion’ initiatives and affirmative action plans,” by which they have “overtly discriminated against those they deem members of so-called majority groups.” Thomas’s perspective here echoes the famous statements—said to have been instrumental in spawning the civil rights movement—by Justice John Marshall Harlan that “Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

The Supreme Court has been under fire recently by both political parties, but with decisions like this one it is making some progress in reversing decades of judicial usurpation of the legislative power. Ames should be regarded as of a piece with the Court’s recent decisions in Dobbs v. Jackson Women’s Health Organization (2022) overturning Roe v. Wade (1973) and returning decisions about abortion to the states and to other opinions that return questions about religion in the public square to states, localities, and private citizens.

Thirty-one years ago, concerned that the Court was wrongfully repudiating its constitutionally assigned modest judicial role, I published a book, Recapturing the Constitution: Race, Religion and Abortion Reconsidered, in which I argued for a color-blind Constitution, greater religious freedom, and a federalist approach to abortion. Much judicial mischief remains to be undone, as Thomas’s concurrence notes, but the Court appears to be edging in the right direction.