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Tuesday, February 21, 2012

Some Confident Predictions About the UT Affirmative Action Case

I'm grateful for Franita's serious early commentary on the Fisher case. I thought I would offer some lighter, but fairly confident, predictions of my own:

1) With all due respect, whichever way it goes, the Court will, somehow, some way, blow it.

2) If Chief Justice Roberts writes the opinion, it will be clear, eloquent, to the point, and avoid most of the difficult issues like the plague.

3) If Justice Thomas writes something, it will be more interesting (whether right or wrong), and closer to an actual description of a number of pertinent social facts, than anything written by the other seven Justices combined. He will be widely condemned. Various CRT-oriented scholars will come along later and make many of the same points. They will not be condemned by other scholars, although it is possible they will be ignored or condescended to.

4) As in CLS, Justice Alito will offer a confident, slightly angry, fully up-to-date vision of the properly functioning university (circa 1975).

5) We will get a full discussion of the history  original public understanding text of the Equal Protection Clause.

6) We may get another, and perhaps slightly richer, discussion of diversity within a given university. We will hear virtually nothing about pluralism or diversity between universities.

7) My forthcoming book First Amendment Institutions, which contains almost everything the Court will need to deal soundly with the case, will be widely cited. (My confidence level on this one is much lower, I admit.)

And . . .

8) Justice Kennedy will be a key vote.  

 

Posted by Paul Horwitz on February 21, 2012 at 12:05 PM in Paul Horwitz | Permalink

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Comments

At least I can look forward to (7). =-)

Posted by: Rick Garnett | Feb 22, 2012 10:18:06 AM

No, not even the text, which is about "protection." See here and here.

Posted by: Chris | Feb 22, 2012 8:56:45 AM

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