The Fight for Equal Protection: Reconstruction-Redemption Redux
14 Pages Posted: 6 Oct 2016
Date Written: 2016
With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state of the Court’s race-based equal protection jurisprudence, and then examine how a one- or two-justice shift, either to the right or to the left, would change this jurisprudence to embody one of the competing visions of the Constitution.
Keywords: Supreme Court of the United States, SCOTUS, Constitutional Law, Jurisprudence, Fourteenth Amendment, Judicial Politics, Racial Classifications, Affirmative Action, Remediation, Disparate Impact, Strict and Heightened Scrutiny
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