Law Commons^™

Animus And Marriage Equality, Susannah W. Pollvogt

Susannah W Pollvogt

Many scholars have speculated about the approach the United States Supreme Court might take in the marriage equality cases currently on its docket. One option that is underexplored is that the Court may revive and rationalize the doctrine of unconstitutional animus. Dormant since the 1996 decision in Romer v. Evans, the doctrine of unconstitutional animus has made only fleeting appearances in the Court’s equal protection jurisprudence, and when it has appeared, it has taken on a distinct incarnation in every instance. For this reason, both scholars and practitioners consider the doctrine to be ill-defined and unreliable. Nonetheless, the doctrine of …

Forgetting Romer, Susannah W. Pollvogt

Susannah W Pollvogt

No abstract provided.

Suspect Classification And Its Discontents, Susannah W. Pollvogt

Susannah W Pollvogt

Suspect classification analysis and the associated tiers of scrutiny framework are the primary doctrinal features of contemporary equal protection jurisprudence. How plaintiffs fare under these twin doctrines determines the ultimate fate of their equal protection claims. But neither doctrine finds firm footing in precedent or theory. Rather, a close examination of the United States Supreme Court’s equal protection jurisprudence reveals these doctrines as historically contingent and lacking in any principled justification. But rather than disregard the contributions of these cases altogether, this Article mines that same body of law not for the discrete doctrinal mechanisms developed in each case, but …

Unconstitutional Animus, Susannah W. Pollvogt

Susannah W Pollvogt

It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively what exactly animus is, or what counts as evidence of animus in any given case. The United States Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while scholars have discussed animus in terms of moral philosophy, no one has attempted to articulate a unified theory of animus as …

Casting Shadows: Fisher V. University Of Texas And The Misplaced Fear Of Too Much Diversity, Susannah W. Pollvogt

Susannah W Pollvogt

Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before.

- Justice Alito

Justice Alito’s comment, made during the recent oral argument before the Supreme Court in Fisher, is troubling on many levels. Significantly, the comment suggests that Justice Alito has not recently re-read Bakke or Grutter—the two Supreme Court decisions that will likely control the outcome in Fisher. Both Bakke and Grutter acknowledge two distinct justifications for race-conscious admissions policies: remedial justifications meant to cure …