Roberts v. McDonald

1 Cite as: 600 U. S. ____ (2023)
Statement of A
LITO, J.
SUPREME COURT OF THE UNITED STATES
JONATHAN ROBERTS, ET AL. v. JAMES V.
M
CDONALD, COMMISSIONER, NEW
YORK STATE DEPARTMENT
OF HEALTH,
ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 22–757. Decided June 30, 2023
The petition for a writ of certiorari is denied.
Statement of J
USTICE ALITO, with whom JUSTICE
THOMAS joins, respecting the denial of certiorari.
The circumstances underlying the dispute below have
long since come and gone, and I therefore agree with the
Court’s decision to deny review. But I write to note that
this case involves an issue of ongoing importance: whether
the Equal Protection Clause permits governments to use
race or ethnicity as a proxy for health risk and therefore
“prioritize the treatment of patients” on that basis. Roberts
v. Bassett, 2022 WL 16936210, *3, n. 2 (CA2, Nov. 15, 2022)
(Cabranes, J., concurring) (noting the “portentous legal is-
sues” implicated by such policies).
When “several new COVID–19 treatments for high-risk
patients” were approved in late 2021, the treatments were
“briefly in short supply” relative to need. Id., at *1 (sum-
mary order). New York State “instruct[ed] providers to fol-
low” its guidance on “higher priority risk group[s]” so long
as the “supply shortage persisted.” Ibid. Echoing similar
guidance from the federal Centers for Disease Control and
Prevention, the State’s guidance specified that “ ‘[n]on-
white race or Hispanic/Latino ethnicity should be consid-
ered a risk factor’” when prioritizing patients. Id., at *1, *3
(alteration in original); Roberts v. Bassett, 2022 WL 785167,
*2 (EDNY, Mar. 15, 2022). The State justified the use of

2 ROBERTS v. MCDONALD
Statement of A
LITO, J.
race and ethnicity as proxies for health risk by appealing to
“ ‘longstanding systemic health and social inequities.’” Rob-
erts, 2022 WL 785167, at *2.
As we have stated many times and have recently reaf-
firmed, the Equal Protection Clause places a “daunting” ob-
stacle in the way of any government seeking to allocate
benefits or burdens based on race or ethnicity, typically giv-
ing way only when the measure in question is “ ‘narrowly
tailored’ ”—that is, “ ‘necessary’ ”—to “remediat[e] specific,
identified instances of past discrimination that violated the
Constitution or a statute.” Students for Fair Admissions,
Inc. v. President and Fellows of Harvard College, 600 U. S.
___, ___ (2023) (slip op., at 15). Therefore, government ac-
tors may not provide or withhold services based on race or
ethnicity as a response to generalized discrimination or as
a convenient or rough proxy for another trait that the gov-
ernment believes to be “‘characteristic’” of a racial or ethnic
group. Id., at ___ (slip op., at 20).
Under that precedent, New York’s general reference to
“longstanding systemic health and social inequities” would
not have sufficed to allow the State to deny a person medi-
cal treatment simply because that person is viewed by the
State as being a member of the wrong racial or ethnic group.
The shortage at issue in this case appears, thankfully, to
have concluded. But in the event that any government
again resorts to racial or ethnic classifications to ration
medical treatment, there would be a very strong case for
prompt review by this Court.