40. Can the Government Ever Classify by Race?

When equal treatment isn’t so simple

The Supreme Court has long said this: if the government uses race to classify people, it had better have a really good reason.

Not just any reason—a compelling one. And the policy must be narrowly tailored. That’s the legal language for strict scrutiny, the highest level of judicial review. In most cases, this means race-based laws don’t stand a chance.

But what about when the government says it’s using race to protect people? Or to improve equity? Or to stop violence?

That’s where things get complicated.

Johnson v. California: Race in Prison Policy

Take prison, for example. In the early 2000s, California had a practice: when inmates first arrived, they were automatically segregated by race for their first 60 days. The reason? Officials said it helped prevent violence between rival racial gangs. They claimed it was a neutral policy: it applied to everyone equally, no matter what race you were.

But for the Court, this raised red flags.

In Johnson v. California (2005), the Supreme Court struck down the idea that so-called racial neutrality could justify segregation. Justice Sandra Day O’Connor, writing for the majority, reminded everyone that we’ve heard this argument before—almost word for word—in Brown and Loving. Just because a policy says it separates all races equally doesn’t make it constitutional.

The Court applied strict scrutiny: if you’re going to sort people by race, even temporarily, the government must show it’s the only way to serve a truly compelling interest.

And here’s the twist: the Court didn’t say California’s goal (preventing prison violence) wasn’t important. In fact, it acknowledged that prisons are complex, dangerous spaces, and the state’s interest in safety was real. But even that didn’t give the prison system a free pass. Racial segregation, the Court said, can’t be the first response. It has to be the last resort.

A Divided Bench

Not everyone agreed.

Justice John Paul Stevens thought the Court should have gone further. He argued the segregation was obviously unconstitutional from the start and there was no need for more fact-finding or deference.

Justice Clarence Thomas, joined by Justice Antonin Scalia, took the opposite view. He argued that courts should defer to prison officials. If those officials say racial separation saves lives, we shouldn’t second-guess them.

That disagreement reflects a bigger tension in the Court’s racial classification cases: Should the context (schools, prisons, employment) change how hard the Court scrutinizes the use of race? Or should race always trigger the same, highest level of review?

Why Johnson Matters

Johnson wasn’t just about prison cells. It was about principle.

If the Constitution is going to mean anything, it has to apply in the hardest places, not just the easy ones. And race, the Court reaffirmed, is never a neutral category. Even when governments claim good intentions, the Court must ask hard questions. Segregation doesn’t become acceptable just because it’s labeled “temporary” or “equal.”

At its core, Johnson tells us something profound: government power can’t sidestep constitutional scrutiny just because it’s operating in messy, dangerous, or difficult environments. Especially when it comes to race.

And it leaves us with a critical reminder:
The real test of a constitutional principle isn’t how well it works when things are calm, but whether we still uphold it when things get complicated.