American Exceptionalism And/In Affirmative Action

Abstract

In Students for Fair Admissions (“SFFA”) , the Supreme Court invalidated race-based admissions programs at Harvard and the University of North Carolina. Not surprisingly, the Court split along ideological lines, and its decision reflected the Justices’ known policy preferences. But the decision also revealed the Justices’ distinct views on American exceptionalism—that is, their beliefs about whether and how America is different, superior, and chosen for a special role.

Previous research has shown that American exceptionalism affects the Supreme Court’s analysis of constitutional issues. It has also shown that the Court articulates its American exceptionalist commitments in two modes: accomplished exceptionalism, which is triumphant and self-celebratory, and aspirational exceptionalism, which is self-critical and cautionary. In this Article, I expand on that previous work by considering whether, how, and when both modes of American exceptionalism have shaped the Supreme Court’s affirmative action jurisprudence. Using close readings and discourse analysis, I analyze the Court’s exceptionalism in five landmark affirmative action cases. My analysis reveals that the Court’s affirmative action case law draws heavily on the tropes and themes of American exceptionalism. It also suggests that the Court uses exceptionalism somewhat predictably: Proaffirmative action justices typically rely on aspirational exceptionalism, while anti-affirmative action justices use the accomplished mode. Finally, and most surprisingly, my analysis reveals that in SFFA, the Court invoked a new mode of exceptionalism—one that is not quite accomplished, not quite aspirational, but somewhere between the two.

These findings have important implications. They indicate that exceptionalism affects the Court’s substantive analysis: Exceptionalism is not a rhetorical device that the Court invokes at random, but rather a worldview that—like ideology or method of constitutional interpretation—shapes the way Justices approach legal issues. My findings also suggest that there are more modes of exceptionalism than have previously been identified. If exceptionalism does, in fact, affect the way the Court makes its decisions, future researchers should attend to these multiple modes.

Keywords: rhetoric, U.S. Supreme Court, constitutional law, constitutional interpretation, race, affirmative action