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ROBERTS RULES OF (DIS)ORDER: DOCTRINAL DOUBLESPEAK ON AFFIRMATIVE ACTION AND
STARE DECISIS

SMU Law Review, Forthcoming

38 Pages Posted:

See all articles by Vinay Harpalani


VINAY HARPALANI

University of New Mexico - School of Law

Date Written: January 20, 2024


ABSTRACT

In this Essay, I argue that Chief Justice John Roberts engaged in doublespeak in
his SFFA v. Harvard/UNC majority opinion. He essentially overruled Grutter v.
Bollinger (2003) but did not admit doing so, and even structured the SFFA
opinion as if he was following Grutter’s precedent. My Essay considers why Chief
Justice Roberts engaged in this “stealth overruling” of Grutter and exposes his
doctrinal sleight of hand in doing so. I first consider how Roberts may have
been concerned about the Court’s legitimacy in the wake of its ruling in Dobbs
v. Jackson Women’s Health Organization (2022), where it explicitly overruled Roe
v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992)—and
how that might have influenced his approach to SFFA. Subsequently, I show how
throughout the SFFA majority opinion, Roberts either misrepresented Grutter or
exploited ambiguities and inconsistencies in Grutter’s doctrine to serve his
agenda. I examine the SFFA majority’s treatment of various issues related to the
constitutionality of race-conscious admissions policies. These include the
compelling interest in diversity, deference to universities on defining their
educational missions, the incidental burden of race-conscious policies on
certain groups, the use of racial categories, “logical” and arbitrary endpoints
for race-conscious admissions, the so-called “essay loophole”, and the possible
military exception. The Conclusion considers the consequences of SFFA majority’s
ruling, including the legal controversies it could spurn. All of these issues
are salient as the next round of cases—challenges to magnet school admissions
policies that increase racial diversity—make their way up to the Supreme Court.



Keywords: affirmative action, racial diversity, stare decisis, constitutional
law, equal protection



JEL Classification: K10, K19, I2, I23, I24, I21, I29, 128

Suggested Citation: Suggested Citation

Harpalani, Vinay, Roberts Rules of (Dis)Order: Doctrinal Doublespeak on
Affirmative Action and Stare Decisis (January 20, 2024). SMU Law Review,
Forthcoming, Available at SSRN: https://ssrn.com/abstract=


VINAY HARPALANI (CONTACT AUTHOR)

UNIVERSITY OF NEW MEXICO - SCHOOL OF LAW ( EMAIL )

1117 Stanford, N.E. MSC11 6070
1 University of New Mexico
Albuquerque, NM 87131
United States



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