Document Type

Article

Publication Date

2012

Abstract

There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger—the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter—a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by personnel changes. The author predicts that the Court will invalidate the Texas plan in a narrow opinion that leaves open the theoretical possibility of some future affirmative action plans surviving constitutional scrutiny. But ironically—as a proponent of racial justice—she hopes that any decision to invalidate the Texas plan expressly overrules Grutter and articulates the Court’s apparent preference for shutting the door on affirmative action completely, rather than disingenuously allowing the light of false hope to seep through a crack in the doorway. If the Supreme Court closes the door, the political process can react directly to the Court’s racial ideology, rather than continuing to be distracted by the Court’s coquettish conception of racial equality. With any luck, this will put the future of affirmative action back in the hands of the political branches—which, of course, is where it belonged to begin with.

Publication Citation

65 Vand. L. Rev. (En Banc) 45-55 (2012)