Document Type

Article

Publication Date

2013

Abstract

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of race, but would nevertheless stop short of overturning Grutter. By contrast, the Court might use Fisher as a vehicle to overrule Grutter entirely; to do so, it might look to Citizens United v. FEC for instructions on how to disavow a governmental interest only recently upheld as sufficient justification for a challenged regulation. Finally, the Court might pursue a stance Justice Kennedy has charted in several opinions; under this approach, it would focus on means rather than ends in order to excise what the Court finds most objectionable about the admissions practices at the University of Texas.