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Cass R. Sunstein, The Invention of Colorblindness, SSRN (2023).

Abstract: Do affirmative action programs violate the Equal Protection Clause? To answer that question, Students For Fair Admissions v. President and Fellows of Harvard College offers a simple narrative with three chapters: (1) in 1868, the Fourteenth Amendment flatly prohibited all racial classifications; (2) from the late 1870s until 1954, the nation and the Court inexplicably departed from that clear constitutional command, which somehow got lost; and (3) from 1954 to the present, Brown v. Board of Education and its successors recovered the Fourteenth Amendment’s “core purpose,” which was colorblindness. The narrative is a concoction; it slides over intense constitutional struggles, social movements, and multiple forms of judicial creativity between 1868 and 1954, and also between 1954 and the present. At the same time, it is both important and difficult to identify the theory of constitutional interpretation at work in Students For Fair Admissions. It is clearly not textualist. Nor is it originalist; Justice Thomas, joined by no one, was the only member of the Court to offer an originalist argument in favor of the result. The operating theory of the Court’s opinion is best described as Dworkinian, as the Court sought both to “fit” and to “justify” the existing legal materials. But in terms of fit, Students For Fair Admissions runs into serious objections; the ruling is flatly inconsistent with both Bakke and Gratz (and essentially overrules them). In terms of justification, Students For Fair Admissions also runs into serious objections; the colorblindness principle is exceedingly difficult to defend as a matter of principle.