By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — As the Supreme Court heard arguments in a racially charged Louisiana voting rights case last month, down on its ground floor a special exhibit was running a continual loop of commentary from Chief Justice John Roberts and others extolling the desegregation ruling of Brown v. Board of Education.

The exhibit takes advantage of the restored bench used by US district court Judge Ronald Davies, who ordered the enrollment of nine Black students at Little Rock Central High School in 1957. Three years after the Brown ruling, Arkansas Gov. Orval Faubus was still fighting school integration.

The Supreme Court’s Cooper v. Aaron decision, arising from that Arkansas standoff, declared the state bound by Brown and reinforced the mandate of desegregation.

The tone of the justices’ commentary in a video is lofty, such as from Justice Brett Kavanaugh: “Brown v. Board of Education is the single greatest moment, single greatest decision, in this court’s history. And the reason for that is that it enforced a constitutional principle, ‘equal protection of the laws,’ ‘equal justice under law,’ and made that real for all Americans.”

Yet the concept of “equal protection of the laws” has shrunk with the modern Supreme Court. That has been evident in the justices’ rulings on race-based measures in education. And during oral arguments in the Louisiana case, Kavanaugh was among the justices who suggested the era of racial remedies, in education and voting, must end.

As race endures as a flashpoint for the justices, the court has weakened the spirit and reach of Brown. A series of impending cases may further erode civil rights milestones.

“Brown is a shell now,” said Sherrilyn Ifill, former president and director-counsel of the NAACP Legal Defense Fund, the organization that took the lead in Brown v. Board of Education.

“They will never reverse it,” she said of the justices. “They will just hollow it out. It’s a much more cynical project than rejecting it outright. … It is still incumbent upon this court to reconcile the decisions they’re making today with the truth of that decision.”

Brown’s legacy, say civil rights advocates, permits race to be used in remedial policies to ensure equal opportunity and to enhance diversity. They contend Brown never required governments to be blind to race, especially as prejudice and discrimination endure.

The conservative majority that controls today’s court has been advancing a “colorblind” ideal and rejecting the kind of race-conscious remedies upheld for decades to address historic bias.

Roberts, Kavanaugh and others on the right-wing envision a country now in an era of racial neutrality, or as the chief justice famously wrote in 2007, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

New cases are on the horizon as activists continue to take advantage of the court’s trend. The group that challenged Harvard and won a 2023 decision striking down race-based college admissions has filed a series of new lawsuits in lower courts, including one challenging the practice of Kamehameha Schools in Hawaii of giving a preference to applicants of Native Hawaiian ancestry.

In addition to the pending Louisiana dispute that began with a NAACP Legal Defense Fund claim of vote dilution in redistricting, the justices are scheduled this month to consider appeals that would test whether advocacy groups and other private parties can even bring such Voting Rights Act claims.

The Trump administration has accelerated a separate line of litigation with its effort to end what’s known as “disparate impact” liability. Such lawsuits have traditionally been brought when an employer imposes a seemingly neutral policy that disproportionately hurts Blacks and other groups protected by civil rights law.

A gap exists between the court’s declarations of equality and the country’s reality, especially considering the Trump administration’s diminishment of civil rights laws that date to the 1960s and its desire to end diversity programs.

“The justices have been equating equal protection to colorblindness, and in doing that they are ignoring a history of structural racism and the continuing effects that give Black people and other people of color less opportunity,” said Jon Greenbaum, who for more than a decade was chief counsel at the Lawyers’ Committee for Civil Rights Under Law and last year founded Justice Legal Strategies.

“We’re going through a period of time where we need greater protection from the court rather than reduced protection,” said Greenbaum, the co-counsel in lawsuits arising from President Donald Trump’s removal of certain officials from independent agencies, such as the National Transportation Safety Board and Federal Labor Relations Authority.

Division over what Brown means

The Supreme Court’s reinterpretation of the 1954 Brown v. Board landmark was underway long before Trump first came to office. With Chief Justice Roberts at the lead, the court has ruled against school integration plans and race-based admissions.

The nine justices came together to offer video commentary for their Brown v. Board of Education exhibit tucked in an alcove behind the oversized sculpture of Chief Justice John Marshall. But they are themselves riven over what Brown means.

In the 2023 Students for Fair Admissions v. Harvard decision ending university race-based admissions, Roberts wrote for a six-justice majority that Brown stands for the principle that “eliminating racial discrimination means eliminating all of it,” even measures that help traditionally excluded Black and Hispanic students.

The three liberal dissenters countered, “Today, this Court stands in the way and rolls back decades of precedent and momentous progress. … In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

Roberts’ limited view of Brown was first on full display in the 2007 dispute over school-integration plans. He relied on the landmark as he invalidated efforts to diversify public schools in Seattle and Louisville.

“Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin,” Roberts wrote. “The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.”

That prompted Justice John Paul Stevens to declare in dissent, “There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. … The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.”

Justice Anthony Kennedy, who voted to reject the Seattle and Kentucky school-integration plans in that 2007 controversy, separated himself from the Roberts’ view of Brown and his “all-too-unyielding insistence that race cannot be a factor” to ensure equal opportunity in schools.

Wrote Kennedy, who retired in 2018, succeeded by Kavanaugh: “The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion.”

Voting Rights Act

The Louisiana redistricting case heard in October arises as the court has been erasing the protections of another milestone of the country’s civil rights era: The 1965 Voting Rights Act.

Based on the arguments, the conservative majority may further restrict remedies for maps that dilute the electoral power of Blacks and Hispanics, particularly in the South.

Congress passed the Voting Rights Act only after the March 7, 1965, “Bloody Sunday” attack on civil rights marchers crossing the Edmund Pettus Bridge in Alabama. State troopers and other police assaulted the marchers with tear gas, clubs and whips.

The pending VRA case traces to 2022, when Louisiana legislators drew a congressional-district map in which Blacks had the opportunity to elect their preferred candidate in only one of the six districts, despite the fact that Blacks make up about a third of the population in the state.

A lower US district court ruled that the map diluted Blacks’ electoral power and likely violated the Voting Rights Act; it ordered the state to redraw the map with two Black-majority districts. After the new map was crafted with two districts, White voters sued. The question for the justices is whether that second district unconstitutionally divided people by race.

Separately, a new question in a pair of appeals to be reviewed in the justices’ private conference on November 21 turns on whether only the US Justice Department – not private groups – can sue under the VRA to challenge redistricting that dilutes the power of minority voters. The 8th US Circuit Court of Appeals ruled in a case brought by the Turtle Mountain Band of Chippawa Indians that that the VRA lacks a provision for such private lawsuits.

If the high court were to adopt that approach, few suits to vindicate voting rights would likely be brought. The Justice Department under Trump has retrenched on voting rights litigation. Even administrations interested in broadly enforcing the VRA had limited litigation resources and relied on private advocacy groups.

‘It was like a ray of hope’

The exhibit highlighting Brown and the bench used by Judge Davies, known as the “Cooper Bench,” is scheduled to remain at the Supreme Court until next summer. Then the artifacts will return to a permanent exhibit in Arkansas.

In the current video, the justices touch on dramatic highpoints, including Davies’ bravery in the face of threats and violence, President Dwight Eisenhower’s order of the 101st Airborne Division into Little Rock, and the leadership of lawyer Thurgood Marshall.

Marshall, as lead counsel for the NAACP Legal Defense Fund, developed the strategy against the “separate but equal” doctrine. In 1967, he became the first Black Supreme Court justice.

The only Black justices since Marshall are Thomas, who succeeded him in 1991, and Ketanji Brown Jackson, appointed in 2022.

The views of Thomas and Jackson on racial remedies and the legacy of Brown are the opposite. They fiercely clashed in the SFFA v. Harvard case.

In the exhibit film, they offer observations from personal experience. Jackson refers to her parents, who grew up in the era of segregation, and were able to see her become a Supreme Court justice.

Thomas recalls the reverence people showed to Brown v. Board in his youth: “They would say ‘Brown,’ as though they had the familiarity of a constitutional scholar. ‘Brown.’”

“For people who were unlettered, for people who were living in that system,” Thomas also relates, “Brown was a godsend, because it said that what was happening that we thought was wrong, they now know that this court said it was also wrong. It’s wrong, not just morally, but under the Constitution of the United States. It was like a ray of hope.”

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