What if a subsequent U.S. Supreme Court were to eschew the Shaare Tefila Court’s originalism? Are Jews a “race” under other theories that the courts might adopt? Historically, as we have seen, there are two competing theories that courts have used to determine whether particular groups can be described as sharing common “racial” characteristics: the scientific evidence test and the social perception (or common-knowledge) test. The former approach to this question is to look to contemporary science for an answer. This method is appealing to those to whom it is important that governmental decision making rely on the best available knowledge. If contemporary science has already answered a question, according to this notion, it is folly to ignore its lessons and to rely instead on unscientific views (whether historical or contemporary) that may be ignorant, misinformed, prejudiced, or stereotypic.

Before the Supreme Court adopted an originalist methodology in St. Francis College and Shaare Tefila, the lower courts used these theories to determine whether Jews, Arabs, and other groups should be considered to be members of distinct “races” within the meaning of nineteenth-century civil rights laws. Earlier in the twentieth century, the lower courts also used more or less the same two approaches (in roughly equal proportion) to decide racial prerequisite cases during the years preceding the Supreme Court’s decisions in Ozawa and Thindh. Given changing understandings of “race,” the more recent racial identity cases preceding St. Francis College and Shaare Tefila were less explicit in their reliance on science than were the older racial prerequisite cases preceding Ozawa and Thindh. Nevertheless, scientific evidence remained an unavoidable issue for judicial considerations of race even into the present era.