Jurisprudence Commons^™

Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg

Faculty Scholarship

A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances.

This essay considers the distinct ways in which the civil rights and social movements for marriage equality gave rise to this durable socio-political transformation. While some scholarship is skeptical about whether rights-focused advocacy can bring meaningful change to people’s day-to-day lives, I argue that the marriage equality movements demonstrate a synergistic relationship between law reform and social change efforts. During the …

The Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr.

Articles

Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system. Social conservatives, including those on the Supreme Court, have latched onto evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of continued disparities for the vast majority of people of color.

This Essay will examine the tension between the Court's conservatives' repeated calls for minorities to achieve their goals through the political process and the Supreme Court's increasingly restrictive "colorblind" …

The Pimple On Adonis's Nose: A Dialogue On The Concept Of Merit In The Affirmative Action Debate, Tobias Barrington Wolff, Robert Paul Wolff

All Faculty Scholarship

Efforts at progressive educational reform in general, and affirmative action in particular, frequently encounter a rhetorically powerful objection: Merit. The story of merit proclaims that high-achieving applicants - those who have already made effective use of educational opportunities in the past and demonstrated a likelihood of being able to do so in the future - enjoy a morally superior claim in the distribution of scarce educational resources. Past achievement, in other words, entitles an applicant to a superior education. This moral framework of merit serves as a constant counterpoint in debates over affirmative action, including those contained in the Court's …

Neutralizing Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Part I of this article argues that the Supreme Court lacks the institutional competence to formulate racial policy for the nation, and highlights the tension that exists between the Court's abstract preference for race neutrality and the concrete reality of contemporary race relations, in which dedicated efforts to promote racial balance offer the only meaningful hope of eliminating systemic discrimination. Part II discusses moderate strategies that can be used to deflect the impact of Grutter’s prohibition on racial balance, suggesting that racial balancing can be restructured in ways that the Supreme Court may view as constitutional. Part III discusses …

Introduction To Law, Ethics, And Affirmative Action In America, Joseph P. Tomain

Faculty Articles and Other Publications

This article discusses the language of the opinion in Grutter v. Bollinger. The rhetoric and language that we use to address race is difficult, if not tortured. The article explains why Grutter should have been an easy case and a simple opinion, and the ways in which the final opinion was anything but simple.

The Dark Side Of Grutter, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Liberals have generally cheered the Supreme Court's decision in Grutter v. Bollinger as validating the continued use of affirmative action in the struggle against racial injustice. But the Supreme Court's modern race cases rest on a misunderstanding of the nature of contemporary racial discrimination. From Brown, to Bakke, to Grutter, the Court has advanced a colorblind conception of racial equality that treats race-conscious affirmative action as constitutionally suspect, because it deviates from an aspirational baseline of race neutrality that lies at the core of the equal protection clause. However, race neutrality is a hopelessly artificial concept in …