The Harvard Law Review Foreword

This year it’s by Reva Siegel and it’s terrific.  I want to quote the closing paragraph, which is a wonderful piece of rhetoric no matter how you come out on her overall argument about the Court’s equal protection doctrine:

“Imagine. Imagine if an appointment to the Supreme Court produced a majority of Justices who reasoned about stop and frisk and other practices of suspect apprehension that differentiate by race in the ways the majority reasoned in Windsor — or even Fisher. Put aside standards of review. Imagine a Court enforcing equal protection by asking whether a law’s enforcement “tells” minorities they are “unworthy,” or by asking whether a law’s enforcement “demeans” and “humil- iates” them. Imagine a case on suspect apprehension that explained that when government classifies by race, even for benign purposes, judicial oversight is required to ensure that government employs means that respect people’s dignity and treat them fairly, as individuals, in order to avoid racially divisive messages. Imagine a Court even suggesting that the constitutionality of a law might require attention to these matters. Imagine a Court at least prepared to get out of the way when minorities secure protection through the political processes. Or, imagine a Court prepared to intervene in politics to guard against laws that violate expectations of fair dealing and engender social division, for minority as well as majority groups. The resources are in our equal protection tradition. Imagine. ”

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