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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 a long history of covert discrimination. But the Supreme Court has held that such efforts to promote racial balance are patently unconstitutional, because the Constitution recognizes only intentional discrimination, and not racially disparate impact, as a form of inequality that can be addressed through affirmative action. However, there is a way in which efforts to both promote racial balance and remedy disparate impact would be permissible, even under the racial jurisprudence of the new six-to-three conservative Supreme Court. Affirmative action plans that used randomized lotteries to allocate resources, such as university admissions, among qualified applicants would constitute race neutral ways of approximating the allocation of resources that would exist in a truly nondiscriminatory culture. By using statistical randomness as a safeguard against structural discrimination and implicit bias, U.S. culture might be able to secure a level of racial justice that it has been unable to achieve through its antidiscrimination laws. The only significant cost of such lottery-based admissions would be the potential loss of some prestige by our elite educational institutions. But certainly, that is a price worth paying to secure a more meaningful level of racial equality.

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North Carolina Law Review, Vol. 100, Issue 3, 739-784.