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Fisher v. University of Texas at Austin: An Imagined Opinion, Concurring in the Judgment

9 Pages Posted: 25 Jun 2016 Last revised: 29 Jun 2016

Michael J. Perry

Emory University School of Law

Date Written: June 24, 2016

Abstract

In FISHER v. UNIVERSITY OF TEXAS AT AUSTIN, decided on June 23, 2016, the Supreme Court of the United States ruled that the race-based admissions system at issue in the case did not violate the Equal Protection Clause. Whether the Court’s ruling was correct is one question; whether, even if the ruling was correct, the Court’s rationale was correct is, of course, a different question.

This brief paper is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in Court’s judgment. Justice Nemo explains, in her opinion, why the Court’s rationale is deeply problematic as a matter of proper constitutional interpretation. Justice Nemo believes that the rationale she articulates in her concurring opinion is in alignment with the theory of judicial review elaborated and defended in this paper: Michael J. Perry, “A Theory of Judicial Review,” http://ssrn.com/abstract=2624978.

For another concurring opinion by Justice Nemo — her concurring opinion, last June, in the same-sex marriage case — see Michael J. Perry, “OBERGEFELL v. HODGES: An Imagined Opinion, Concurring in the Judgment,” http://ssrn.com/abstract=2624022.

Suggested Citation

Perry, Michael J., Fisher v. University of Texas at Austin: An Imagined Opinion, Concurring in the Judgment (June 24, 2016). Emory Legal Studies Research Paper No. 16-412. Available at SSRN: https://ssrn.com/abstract=2800122

Michael John Perry (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-2086 (Phone)

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