It’s dismaying. While it doesn’t seem to get discussed much, the dissent in Miller-El is part of the context that makes Parents Involved so infuriating. Invoking glib tautologies in defense of a “color-blind constitution” becomes pretty hard to sustain when you’re unable to find any racial discrimination in a case in which prosecutors systematically excluded black jurors for transparently pretextual reasons. But that’s modern conservatism: Brown v. Board has been reinterpreted on the one hand to constitutionally legitimate school systems that are segregated and unequal, while on the other it can prevent school boards from trying to integrate their schools.
In related news, former Time Blog of the Year calls the 14th Amendment “an anachronism.”