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 more radical strategies that can be used to promote racial balance, and advocates a direct confrontation with the institution of judicial review in the context of affirmative action. The article concludes that the political branches of government possess the power to overcome Supreme Court impediments to racial justice, and hopes that they also possess the will to exercise that power.
7 U. Pa. J. Const. L. 633-668 (2005)
Scholarly Commons Citation
Spann, Girardeau A., "Neutralizing Grutter" (2005). Georgetown Law Faculty Publications and Other Works. Paper 244.