WASHINGTON — For two-thirds of this century, civil rights lawyers, liberal judges and legal scholars contended the Constitution was "colorblind," citing the ringing words of dissent from Justice John Marshall Harlan in the Plessy vs. Ferguson case of 1896.
Refusing to endorse legal segregation on Louisiana's railroads, Harlan wrote: "Our Constitution is color blind. In respect of civil rights, all citizens are equal. The law regards man as man and takes no account of his surroundings or his color."
In the 1950s, then-lawyer Thurgood Marshall invoked the theory of the colorblind Constitution when he made his successful attack on school segregation before the high court.
Legal distinctions "made on a racial basis or on the basis of ancestry are odious and invidious," he told the justices in the landmark case Brown vs. Board of Education.
But since the 1970s, it has been conservative--not liberal--lawyers, judges and legal scholars who have invoked the colorblind Constitution. They have argued that minorities cannot be singled out by the law--even if the law gives them preference, as in the case of affirmative action.
This year, 99 years after Plessy vs. Ferguson, the Supreme Court may finally have a solid majority to rule that the colorblind principle is the law, regardless of who benefits.
If the conservative majority holds together, a ruling barring legal preferences based on race could affect billions of dollars in government contracts, as well as the employment prospects for millions of public employees.
Perhaps even more significant, a broad court ruling striking down federal preferences based on race could signal a retreat from the nation's 20-year experiment with official affirmative action.
While the justices are not reconsidering affirmative action by private employers, some legal experts believe even such voluntary programs could be undermined by a strong repudiation of government efforts.
Begun quietly under Presidents Lyndon B. Johnson and Richard Nixon to remedy blatant bias and open the doors to minorities, affirmative action blossomed in the 1970s with a series of federal programs that reserved a percentage of contracts and jobs for blacks, Latinos and other minorities.
Colleges, universities and most private employers followed with a variety of programs designed to increase the number of minorities on campus or on the job.
But these programs were originally conceived as temporary measures. And their critics, bolstered by the conservative political tide, say their time is up.
"That is the major question before the court," said Notre Dame University law professor Douglas Kmiec. "Is the Constitution in 1995 colorblind, even if society is not there yet? Is it time to say race is an irrelevant factor in government decision-making?"
The first test will come Tuesday, when the justices hear arguments on behalf of a white road-builder from Colorado, who submitted a low bid to erect guardrails along a federal highway but lost out to Gonzales Construction Co., a Latino-owned firm, because of a preference program.
"I'm not mad at minorities, but I don't feel the government should be encouraging discrimination," said Randy Pech, the road-builder. "This has been happening to me 15 years, and I don't see it ending."
But many legal experts think it could end this year because of the markedly changed makeup of the Supreme Court.
Just five years ago, the high court narrowly upheld "benign race-conscious" federal programs that benefit minorities.
That ruling prompted a strong dissent from four conservatives, who accused the majority of "welcoming the return of racial classifications to the nation's laws."
"At the heart of the Constitution's guarantee of equal protection lies the simple command that the government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class," Justice Sandra Day O'Connor said in dissent. She was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy.
In July, 1990, three weeks after the opinion upholding benign discrimination, its author, 84-year-old Justice William J. Brennan, suffered a stroke and was forced to step down. A year later, Justice Thurgood Marshall joined him in retirement. Byron R. White and Harry A. Blackmun followed after that. Now, only one justice, John Paul Stevens, is left from the majority that upheld affirmative action.
And the conservatives have been bolstered by Justice Clarence Thomas, who has publicly endorsed the colorblind principle in lawmaking.
"If there was ever an opportunity to do something, this is it," said Ohio State University law professor Michael Rose, who filed a brief on behalf of conservative academics urging the court to outlaw official affirmative action.
Minority advocates, looking at the same changed court, are worried about the outcome.
