Document Type

Article

Publication Date

4-2024

Abstract

In the Supreme Court’s most recent affirmative action decision—Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College—the Court wrongly continued to believe that it has a role to play in determining the constitutionality of affirmative action. Where the Constitution lacks a legal standard that is sufficiently precise to provide meaningful constraint on the exercise of judicial discretion, questions concerning proper interpretation of that standard are what Marbury v. Madison deemed to be “in their nature political” and therefore “only politically examinable.” In such cases, the Constitution simply means what the political branches of government say it means, so there is no basis for the Supreme Court to declare a representative branch interpretation unconstitutional. The contemporary Supreme Court itself recognized this need for judicial deference in its 2019 Rucho v. Common Cause decision, when it declined to rule on the constitutionality of partisan gerrymandering. Although the challengers there argued that the Equal Protection Clause made partisan gerrymandering unconstitutional, the Court held that the Equal Protection Clause’s lack of judicially manageable standards was enough to render the constitutional challenge a nonjusticiable political question.

Under the doctrine of separation of powers, the same Equal Protection Clause that rendered partisan gerrymandering nonjusticiable should also have rendered challenges to majoritarian affirmative action programs nonjusticiable. But the Supreme Court has gerrymandered its justiciability rules in a way that vests the Court with the precise political and ideological discretion that Marbury's political question doctrine was intended to guard against. And the Court's selective application of its justiciability rules has, in turn, enabled the Court to gerrymander its substantive law of affirmative action, in a way that ironically makes the Equal Protection Clause itself a doctrinal tool that an ideologically motivated Supreme Court can use to facilitate discrimination against racial minorities.

Since the Supreme Court first considered the constitutionality of racial affirmative action in the 1970s, the Court has adopted ambiguous and inconsistent interpretations of the Equal Protection Clause. Sometimes the Court upheld challenged affirmative action programs, and sometimes it held affirmative action programs to be unconstitutional violations of equal protection. But because neither the language nor the original meaning of the Equal Protection Clause has changed since its adoption, those inconsistent interpretations themselves attest to the doctrinal imprecision of the equal protection standard. That imprecision is further highlighted by the divergent interpretations of the majority, concurring, and dissenting opinions in the Court's SFFA case. But those interpretive inconsistencies are not the product of mere judicial inattention. Rather, they emanate from the subjective, and ultimately normative, nature of “equality” itself.

Publication Citation

Georgetown Law Journal, Vol. 112, No. 4, Pp. 895-933.

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