Just in time for oral arguments in Fisher v. University of Texas at Austin, the online companion to the Northwestern University Law Review is pleased to feature an article by Professor Ellen Katz entitled Grutter‘s Denouement: Three Templates from the Roberts Court. Katz argues that while Fisher is widely expected to end the race-based affirmative action in higher education upheld in Grutter v. Bollinger a decade ago, it remains to be seen exactly how the Roberts Court – which has not been shy about voicing its hostility to race-based criteria in a variety of contexts – will express its condemnation. In particular, Katz identifies three very different ways in which the court may resolve Fisher, each based on one of the Court’s previous approaches to disavowing precedent.
Earlier this year, the Colloquy featured an essay by Professor Allen Rostron entitled Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground. In his article, Rostron notes that critics have condemned the failure of Justice Kennedy – who often casts the decisive vote in ideologically charged chases – to establish clear rules of law through his opinions. Rostron argues that in Fisher, however, Justice Kennedy’s irresolute nature may prove to be a blessing, in that it may help him accommodate the American public’s conflicted feelings about racial preferences while simultaneously forcing serious thinking about how racial components of affirmative action can be phased out in a manner that will minimize disruption and bitterness.
Read these articles and more on the Colloquy.