Supreme Court of the United States Commons^™

Roberts's Revisions: A Narratological Reading Of The Affirmative Action Cases, Angela Onwuachi-Willig

Faculty Scholarship

In a seminal article published nearly twenty years ago in the Yale Journal of Law and the Humanities, Professor Peter Brooks posed a critical yet underexplored question: "Does the [flaw [n]eed a [n]arratology?"⁵ In essence, he asked whether law as a field should have a framework for deconstructing and understanding how and why a legal opinion, including the events that the opinion is centered on, has been crafted and presented in a particular way.⁶ After highlighting that "how a story is told can make a difference in legal outcomes," Brooks encouraged legal actors to "talk narrative talk" …

Random Justice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As recent Senate confirmation practices suggest, the Supreme Court is best understood as the head of a political branch of government, whose Justices are chosen in a process that makes their ideological views dispositive. Throughout the nation’s history, the Supreme Court has exercised its governing political ideology in ways that sacrifice the interests of nonwhites in order to advance the interests of Whites. In the present moment of heightened cultural sensitivity to structural discrimination and implicit bias, it would make sense to use affirmative action to help remedy the racially disparate distribution of societal resources that has been produced by …

Chief Justice John Roberts: Institutionalist Or Hubris-In-Chief?, Eric J. Segall

Washington and Lee Law Review Online

The conventional wisdom among Supreme Court scholars and commentators is that Chief Justice John Roberts is an institutionalist who cares deeply about both his personal legacy and the Supreme Court’s prestige over time. This essay challenges that belief. While the Chief certainly cares about how the Court is perceived by the public, as do most of the justices, what most defines Roberts is his hubris—not a concern for the Court’s legitimacy or even his own place in history. Across the vast landscape of constitutional law, Roberts has distorted precedent and ignored text and history to further his own policy preferences. …

The Long Shortlist: Women Considered For The Supreme Court, Michael Conklin

Journal of Race, Gender, and Ethnicity

No abstract provided.

Rejecting Honorary Whiteness: Asian Americans And The Attack On Race-Conscious Admissions, Philip Lee

Faculty Publications

Since the 1960s, Asian Americans have been labeled by the dominant society as the “model minority.” This status is commonly juxtaposed against so-called “problem” minorities such as African Americans and Latinx Americans. In theory, the model minority narrative serves as living proof that racial barriers to social and economic development no longer exist in America. If Asians can succeed against all odds, the reasoning goes, so can everyone else. Further, if a member of a minority group fails, it is because of their own lack of diligence and ambition, and not some supposed systemic unfairness. However, the model minority narrative …

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Erwin Chemerinsky

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …

Bakke’S Lasting Legacy: Redefining The Landscape Of Equality And Liberty In Civil Rights Law, Rachel F. Moran

Faculty Scholarship

The fortieth anniversary of Regents of the University of California v. Bakke is worth commemorating simply because the decision has survived. The United States Supreme Court’s opinion upholding the use of race in admissions has had remarkable staying power, even as other programs of affirmative action, for example, in government contracting, have been struck down as unconstitutional. That longevity might seem surprising because Bakke set forth an exacting standard of strict scrutiny under equal protection law that renders all race-based classifications suspect, whether government officials are motivated by benign or invidious purposes. That standard is one that few programs can …

Eight Is [Not] Enough: A Review Of The 2015-2016 U.S. Supreme Court Term, Miller W. Shealy Jr.

Miller W. Shealy Jr.

No abstract provided.

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Vanderbilt Law Review

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …

Race, Restructurings, And Equal Protection Doctrine Through The Lens Of Schuette V. Bamn, Steve Sanders

Brooklyn Law Review

In 2012, the U.S. Court of Appeals for the Sixth Circuit ruled that Michigan voters had violated principles of the fair lawmaking process when they amended their state constitution to prohibit race-conscious affirmative action in public university admissions, reasoning that the amendment, known as “Proposal 2,” constituted a political restructuring that had violated the Equal Protection Clause by disadvantaging African Americans from being able to equally access political change. However, the Sixth Circuit was careful to avoid saying that Proposal 2 created a racial classification or was motivated by a purpose of discriminating on the basis of race. Instead, consistent …

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

All Faculty Scholarship

With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …

Mugwump, Mediator, Machiavellian, Or Majority? The Role Of Justice O'Connor In The Affirmative Action Cases, Thomas R. Haggard

Akron Law Review

The purpose of this article is to provide a critical analysis of Justice O'Connor's affirmative action opinions. It will show that while her early record provides justification for all three characterizations, her more recent decisions suggest the emergency of a more favorable image. Her opinions in Croson and Media Broadcasting reflect the realization that a narrow, hair-splitting approach to this critical social and constitutional crisis will do little to hasten its resolution; that there is apparently no form of affirmative action that the liberal wing of the Court is unwilling to endorse, making her consensus by compromise approach a futile …

A Historical Review Of Affirmative Action And The Interpretation Of Its Legislative Intent By The Supreme Court, Carl E. Brody Jr.

Akron Law Review

In Part I, I will discuss the history of pre-affirmative action programs. This involves an analysis of the original intent of the Fourteenth Amendment, its related remedial legislation, as well as several of the New Deal Acts prohibiting employment discrimination. Part II will analyze the advent of affirmative action, from its inception with the 1957 and 1960 Civil Rights Acts, and trace its development through Executive Orders 12250 and 12259, which constitute the last major expansion in affirmative action doctrine. Part III will examine the period between 1978 and 1991, where the Supreme Court's attempts to find a consistent interpretation …

Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John Powell, Stephen Menendian

john a. powell

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …

Brief For Society Of American Law Teachers As Amicus Curiae Supporting Respondents, University Of Texas At Austin, Marc A. Hearron, David D. Cross, Bryan J. Leitch

Society of American Law Teachers Archive

No abstract provided.

From Access To Success: Affirmative Action Outcomes In A Class-Based System, Matthew N. Gaertner, Melissa Hart

Publications

Scholarly discussion about affirmative action policy has been dominated in the past ten years by debates over "mismatch theory'"--the claim that race-conscious affirmative action harms those it is intended to help by placing students who receive preferences among academically superior peers in environments where they will be overmatched and unable to compete. Despite serious empirical and theoretical challenges to this claim in academic circles, mismatch has become widely accepted outside those circles, so much so that the theory played prominently in Justice Clarence Thomas's concurring opinion in Fisher v. University of Texas. This Article explores whether mismatch occurs in …

A Nation Of Widening Opportunities: The Civil Rights Act At 50, Ellen D. Katz, Samuel R. Bagenstos

Books

The Civil Rights Act of 1964 was an extraordinary achievement of law, politics, and human rights. On the fiftieth anniversary of the Act's passage, it is appropriate to reflect on the successes and failures of the civil rights project reflected in the statute, as well as on its future directions. This volume represents an attempt to assess the Civil Rights Act's legacy.

On October 11, 2013, a diverse group of civil rights scholars met at the University of Michigan Law School in Ann Arbor to assess the interpretation, development, and administration of civil rights law in the five decades since …

On Class-Not-Race, Samuel R. Bagenstos

Book Chapters

Throughout the civil rights era, strong voices have argued that policy interventions should focus on class or socioeconomic status, not race. At times, this position-taking has seemed merely tactical, opportunistic, or in bad faith. Many who have opposed race-based civil rights interventions on this basis have not turned around to support robust efforts to reduce class-based or socioeconomic inequality. That sort of opportunism is interesting and important for understanding policy debates in civil rights, but it is not my focus here. I am more interested here in the people who clearly mean it. For example, President Lyndon Baines Johnson—who can …

Place, Not Race: Affirmative Action And The Geography Of Educational Opportunity, Sheryll Cashin

University of Michigan Journal of Law Reform

Ultimately, I argue that one important response to the demise of race-based affirmative action should be to incorporate the experience of segregation into diversity strategies. A college applicant who has thrived despite exposure to poverty in his school or neighborhood deserves special consideration. Those blessed to come of age in poverty-free havens do not. I conclude that use of place, rather than race, in diversity programming will better approximate the structural disadvantages many children of color actually endure, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. While I propose substituting …

The Quixotic Search For Race-Neutral Alternatives, Michael E. Rosman

University of Michigan Journal of Law Reform

The Supreme Court has stated that the narrow-tailoring inquiry of the Equal Protection Clause’s strict scrutiny analysis of racially disparate treatment by state actors requires courts to consider whether the defendant seriously considered race-neutral alternatives before adopting the race-conscious program at issue. This article briefly examines what that means in the context of race-conscious admissions programs at colleges and universities. Part I sets forth the basic concepts that the Supreme Court uses to analyze race-conscious decision-making by governmental actors and describes the role of “race-neutral alternatives” in that scheme. Part II examines the nature of “race-neutral alternatives” and identifies its …

Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson

University of Michigan Journal of Law Reform

Our exploration is organized as follows. In Part I, we sympathetically consider the very difficult dilemmas facing higher education leaders. Understanding the often irreconcilable pressures that constrain university administrators is essential if we are to envision the plausible policies they might undertake. In Part II, we draw on a range of data to illustrate some of the “properties” of admissions systems and, in particular, the ways in which race, SES, and academic preparation interact dynamically both within individual schools and across the educational spectrum. Partly because the questions we examine here have been so little studied, ideal data does not …

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian

University of Michigan Journal of Law Reform

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …

The Role Of Networks, Mentors, And The Law In Overcoming Barriers To Organizational Leadership For Women With Children, Terry Morehead Dworkin, Aarti Ramaswami, Cindy A. Schipani

Michigan Journal of Gender & Law

The 2012 election brought headlines such as "Another 'Year of Women' in Congress." Although the number of women in the highest legislative offices increased, their numbers are still significantly lower than those of men. Fewer than 100 women hold office in both houses of Congress. Corporate America similarly reflects significantly low female leadership numbers. For example, "fewer than 20% of finance industry directors and executives are women, and [there are] no women leading the 20 biggest U.S. banks and securities firms." Women make up nearly half the workforce and hold 60% of bachelor degrees, yet they hold only 14% of …

Considering Class: College Access And Diversity, Matthew N. Gaertner, Melissa Hart

Publications

Each time that the continued legality of race-conscious affirmative action is threatened, colleges and universities must confront the possibility of dramatically changing their admissions policies. Fisher v. University of Texas, which the Supreme Court will hear this year, presents just such a moment. In previous years when affirmative action has been outlawed by ballot initiative in specific states or when the Court has seemed poised to reject it entirely, there have been calls for replacing race-conscious admissions with class-based affirmative action. Supporters of race-conscious affirmative action have typically criticized the class-based alternative as ineffective at maintaining racial diversity. This …

Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz

Articles

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …

On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz

Articles

The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is now defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose in bothTexas v. Holder andFisher v. University of Texas because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely …

The Promise Of Grutter: Diverse Interactions At The University Of Michigan Law School, Meera E. Deo

Michigan Journal of Race and Law

In Grutter v. Bollinger, the U.S. Supreme Court upheld affirmative action at the University of Michigan Law School on the grounds of educational diversity. Yet the Court's assumption that admitting diverse students into law school would result in improved race relations, livelier classroom conversations, and better professional outcomes for students has never been empirically tested. This Article relies on survey and focus group data collected at the University of Michigan Lav School campus itself in March 2010 to examine not only whether, but how diversity affects learning. The data indicate both that there are sufficient numbers of students of color …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Publications

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de …

The Future Of Disparate Impact, Richard A. Primus

Articles

The Supreme Court's decision in Ricci v. DeStefano foregrounded the question of whether Title VIl's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.