Brian Fitzpatrick has a very telling anecdote in his defense of Louisiana v. Callais (2026) at SCOTUSBlog.
Brian Fitzpatrick has a very telling anecdote in his defense of Louisiana v. Callais (2026) at SCOTUSBlog:
This publication has been inundated with essays by academics critical of Louisiana v. Callais, but has not published a single one in defense of it. So I decided to take it on in my column. After all, I am pretty sure Justice Antonin Scalia would have approved of the decision. As you will see, I didn’t find the assignment particularly difficult. Which raises a question: why has no one else been willing to defend a 6-3 decision of the Supreme Court? I will tell you the answer with a short story.
When I was thinking about becoming a law professor — I am sorry to say this was something like a quarter century ago now — I went to go see one of my favorite former law professors, Elena Kagan, for advice. She was then the dean at Harvard Law School, but I had known her merely as my Administrative Law professor. She asked me what field I wanted to pursue and I told her race discrimination law. It was the reason I went to law school to begin with. It was what I had written my law school thesis on. Her response: don’t do it. She explained that, in order to get a job as a race discrimination scholar at any school, I would have to win over the other scholars at that school who worked in that area. Kagan said that at every school the scholars who worked in that area all supported racial preferences. The problem was that I was against racial preferences. She said for that reason alone no one in the field would support hiring me. She told me to choose something else.
So I did. I decided to pursue class action litigation instead. It’s been a perfectly pleasant career. But it also explains why the academy is monolithic – and, frankly, untrustworthy — on race issues: you aren’t allowed to specialize in these issues unless you toe the party line. Today, we call this “ideological capture” of the academy.
As Fitzpatrick continues, this monolithic party line is why the professoriate has coalesced around a consensus view of race discrimination law that bears no resemblance to the law as it is interpreted by American courts:
Academics do not believe that racial discrimination is almost always illegal. Rather, the academy has coalesced around something called the “anti-subordination” view of the equal protection clause: it is not so much about combating discrimination as it is about combating subordination. Thus, racial discrimination to help racial groups that have been historically subordinated is perfectly fine, including discrimination to help black voters.
Anti-subordination may be a perfectly fine theory – although, I admit I am not sure what is supposed to happen when the discrimination to help one historically subordinated group hurts another historically subordinated group, as racial preference programs sometimes do to Asians – but the theory has been rejected by the Supreme Court every single time it has been presented to it, beginning all the way back in 1880. Rather, the court has always said the equal protection clause protects all races, well, equally. For this reason, no one thought the court in Callais was going to say that discrimination to help black voters is not the kind of racial discrimination that must pass strict scrutiny.
Of course, if you start with a completely different standard for evaluating laws than the one used by courts, you will find the courts’ decisions to be indefensible. But that also means that you’re teaching future lawyers an interpretation of the law that is not the actual law of the land they will encounter in legal practice, and never has been.