In the course of her oral argument today (in yet another case styled United States v. Texas), Solicitor General Elizabeth Prelogar declared: “I don’t think it’s ever too late for this Court to give the statute its proper construction when you actually look at its text, context, and history.” (Transcript at 38:7-10.)
That would be a great principle for the Court to have in mind as it addresses Students For Fair Admissions’ claims that Harvard and the University of North Carolina have violated Title VI of the Civil Rights Act of 1964 by their use of race in their admissions decisions. But even if the Court doesn’t agree with Prelogar’s principle, there are plenty of reasons why the stare decisis weight that the Court ordinarily applies to its statutory precedents shouldn’t apply to its botches of Title VI.