Bench Memos

Justice Ginsburg on Future Affirmative-Action Challenges

In an interview in which she opined on much that a sitting justice has no business opining on, Justice Ginsburg had this to say about a topic in my neck-of-the-woods:  “[Ginsburg] said court majorities this term moved to shut down tactics used by opponents of abortion and of affirmative action in higher education in two major cases.  Ginsburg said she doesn’t expect to see any more such cases after the court upheld the use of race in college admissions in Texas and struck down Texas abortion-clinic regulations that the state said were needed to protect patients.” 

So, what are the “tactics” of racial-preference opponents that she thinks the court has “shut down” — bringing lawsuits against schools that are engaging in such discrimination?  It’s risible to suggest these policies should be meekly accepted, or that the Court’s decisions have drawn such clear lines on what is and is not acceptable that future litigation is pointless.  And I would note that in the five instances in which the Court as heard such challenges, a majority ruled in the plaintiffs’ favor three times (Bakke, Gratz, and Fisher I).  In the other two instances (Grutter and Fisher II), the plaintiff lost by one vote.

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