Wednesday, June 27, 2007

Thoughts on Tomorrow's School Cases

Let me quote in full this post from scotusblog. As someone who appreciates that the business of lawyers is and must be doctrinal before political, I heartily agree. Thank you, Professor Fried.

Here is a prediction: the Court in its school race-based assignment cases will take a bite of Grutter, just as in Wisconsin RLF it took a bite out of McConnell. And the usual suspects –e.g. The New York Times editorial page—will once again point to what they will call the false fealty to stare decisis sworn by Chief Justice Roberts and Justice Alito. Such accusations will be either ignorant or hypocritical. Grutter was paired with Gratz, which struck down the Michigan undergraduate plan of racial preferences because it was mechanical and numerical rather than individualized and sensitive as in Grutter. Those who are addicted to racial preferences celebrated Grutter and ignored Gratz, no doubt encouraged by the elevated rhetoric in Grutter. But this Term’s school cases are more like Gratz than they are like Grutter. Truth be told, Grutter was more like Gratz too, only the Court chose to ignore the clear findings of fact that Michigan Law School was just as addicted to numbers and percentages as the undergraduate program, but due to the smaller number of applicants (and better legal advice) could accomplish its goals without leaving the paper trail that a much larger admissions process made inevitable. So what we have is an incoherent pair of precedents and, as is the case with a contradictory proposition, such a contradiction entails anything, everything or nothing.

Grutter and Gratz leave the people in charge of making policy with no reasonable rule for making constitutional decisions. Hopefully, tomorrow's cases will make the task of legislating easier.

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