Recent Articles in Volume 77, Issue 1 (2024)
The Post-Racial Deception of the Roberts Court
By Cedric M. Powell – Students for Fair Admissions v. Harvard/UNC (SFFA) is a post-racial deception unmoored from precedent and societal reality. SFFA deceives the polity and signals an all out assault on anti-discrimination law. To preserve its institutional legitimacy, the Roberts Court promotes doctrinal and conceptual distortions—post-racial deceptions of cognizable injuries advanced through reverse discrimination claims of white plaintiffs; racial proxy claims of discrimination proffered by Asian-Americans; and the fairness rationale of the Court’s circular post-racial edict that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” [...]
Roberts Rules of (Dis)Order: Doctrinal Doublespeak on Affirmative Action and Stare Decisis
By Vinay Harpalani – In this Article, I argue that Chief Justice John Roberts engaged in doublespeak in his SFFA v. Harvard/UNC majority opinion. He essentially overruled Grutter v. Bollinger (2003) but did not admit doing so, and even structured the SFFA opinion as if he was following Grutter’s precedent. My Article considers why Chief Justice Roberts engaged in this “stealth overruling” of Grutter and exposes his doctrinal sleight of hand in doing so. I first consider how Chief Justice Roberts may have been concerned about the Court’s legitimacy in the wake of its ruling in Dobbs v. Jackson Women’s Health Organization (2022)—where it explicitly overruled Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)—and how that might have influenced his approach to SFFA. [...]
By Robert A. Garda Jr. – In two cases, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (SFFA), the Supreme Court held that Harvard and UNC violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act in their use of race in their admissions process. This Article examines the SFFA decision through the lens of interest-convergence theory. [...]
Data’s Demise and the Rhetoric of SFFA
By Shakira Pleasant – The Supreme Court’s holding that Harvard College’s and the University of North Carolina’s (UNC) “admissions systems” are invalid under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 was an anticipated result. The Court’s 2016 decision in Fisher v. University of Texas at Austin (Fisher II), left some speculation that race-conscious admissions could eventually be struck down by the Court; however, Fisher II also offered some guidance for future litigants to address challenges. Colleges and universities needed to use data to “scrutinize the fairness of their admissions programs” to satisfy the burden strict scrutiny and narrow tailoring impose.[...]
By Josh Blackman – Students for Fair Admissions v. Harvard (SFFA) will be studied by law students for generations, in much the same way that Bakke and Grutter were studied before. But there is much more to SFFA than the final decisions about Harvard University and the University of North Carolina will reveal. This Article, published for a symposium by the SMU Law Review, focuses on three stages of the litigation: the petitions, the oral arguments, and the decision. Part I recounts the complex procedural history, which began in federal courts in Massachusetts and North Carolina. The Harvard case reached the Supreme Court first, while the UNC case lingered in district court. The Supreme Court called for the views of the Solicitor General. By doing so, the Court could punt the case to the following term, which allowed the UNC case to catch up, and Justice Breyer’s replacement to be confirmed. Both cases would be argued on October 31, 2022. [...]