Did the Court in SFFA Overrule Grutter?

99 Notre Dame L. Rev. Reflection 113 (2023)

24 Pages Posted: 29 Aug 2023 Last revised: 22 Jan 2024

Date Written: January 17, 2024

Abstract

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Supreme Court held that affirmative action programs designed to comply with the precedent set in Grutter v. Bollinger were unlawful. Yet the Court nowhere said that it was overruling Grutter and, in fact, relied on Grutter as authority. Neither the Justices themselves nor subsequent commentators have been able to agree on what, if anything, remains of Grutter today. Did SFFA overrule Grutter or not? This Essay analyzes that question and its normative fallout. The Essay concludes that SFFA at least partially overruled Grutter and that the Court’s failure to acknowledge as much should trouble us. What exactly is left of Grutter will be a question for future parties to litigate and for lower courts to resolve as they struggle to apply SFFA’s opaque reasoning.

Keywords: Precedent, SFFA v. Harvard, affirmative action, obstructing precedent, stealth overruling, legal philosophy

Suggested Citation

Watson, Bill, Did the Court in SFFA Overrule Grutter? (January 17, 2024). 99 Notre Dame L. Rev. Reflection 113 (2023), Available at SSRN: https://ssrn.com/abstract=4549567

Bill Watson (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

HOME PAGE: http://billwatson.net

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