Fisher v. Grutter

12 Pages Posted: 14 Nov 2012  

Girardeau A. Spann

Georgetown University Law Center

Date Written: 2012

Abstract

There is no reason for the Supreme Court to have granted certiorari in Fisher v. University of Texas at Austin. Unless, of course, the Court plans to overrule Grutter v. Bollinger — the case on which the Texas affirmative action plan at issue in Fisher was based. If that is its plan, the Court can invalidate the Texas program on some narrow ground that masks the magnitude of what it is doing. Or it can explicitly overrule Grutter — a case that no longer commands majority support on a Supreme Court whose politics of affirmative action has now been refashioned by personnel changes. The author predicts that the Court will invalidate the Texas plan in a narrow opinion that leaves open the theoretical possibility of some future affirmative action plans surviving constitutional scrutiny. But ironically — as a proponent of racial justice — she hopes that any decision to invalidate the Texas plan expressly overrules Grutter and articulates the Court’s apparent preference for shutting the door on affirmative action completely, rather than disingenuously allowing the light of false hope to seep through a crack in the doorway. If the Supreme Court closes the door, the political process can react directly to the Court’s racial ideology, rather than continuing to be distracted by the Court’s coquettish conception of racial equality. With any luck, this will put the future of affirmative action back in the hands of the political branches — which, of course, is where it belonged to begin with.

Keywords: affirmative action, certiorari, Supreme Court, racial justice, political realism, constitutional law

JEL Classification: K00, K10, K19

Suggested Citation

Spann, Girardeau A., Fisher v. Grutter (2012). Vanderbilt Law Review (En Banc), Vol. 65, pp. 45-55 , 2012; Georgetown Public Law Research Paper No. 12-170. Available at SSRN: https://ssrn.com/abstract=2174443

Girardeau A. Spann (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9103 (Phone)

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