Political Affirmative Action
INTRODUCTION
In the Supreme Court’s most recent affirmative action decision—Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College—the Court wrongly continued to believe that it has a role to play in determining the constitutionality of affirmative action. Footnote #1 content: See Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023). The Court’s decision also resolved Students for Fair Admissions, Inc. v. University of North Carolina (UNC), addressing a constitutional equal protection claim and Title VI statutory claim. Id. at 197–98. While Justice Jackson dissented in the UNC case, id. at 382 (Jackson, J., dissenting), she recused herself from the Harvard case because she had previously been a member of the Harvard Board of Overseers. See id. at 231 (Jackson, J., taking no part in the consideration or decision of the Harvard case); Jimmy Hoover, Justice Jackson Steps Aside from Harvard Admissions Case, LAW360 (July 22, 2022, 8:20 PM), https://www.law360.com/articles/1514456/justice-jackson-steps-aside-from-harvard- admissions-case. Where the Constitution lacks a legal standard that is sufficiently precise to provide meaningful constraint on the exercise of judicial discretion, questions concerning proper interpretation of that standard are what Marbury v. Madison deemed to be “in their nature political” Footnote #2 content: 5 U.S. (1 Cranch) 137, 170 (1803) (recognizing need to insulate executive political policymaking decisions from judicial interference). and therefore “only politically examinable.” Footnote #3 content: Id. at 166. In such cases, the Constitution simply means what the political branches of government say it means, so there is no basis for the Supreme Court to declare a representative branch interpretation unconstitutional. Footnote #4 content: Consistent with Occam’s razor, I think that this is the most efficient way in which to conceptualize the political question doctrine for present purposes. See Brian Duignan, Occam’s Razor, BRITANNICA (Jan. 2, 2024), https://www.britannica.com/topic/Occams-razor [https://perma.cc/2473-R3LF] (describing the principle of Occam’s razor as “of two competing theories, the simpler explanation of an entity is to be preferred”). However, the political question doctrine can also be understood as having considerably more complexity. See, e.g., Louis Henkin, Is There a “Political Question” Doctrine?, 85 YALE L.J. 597, 597– 601, 622–25 (1976); Robert F. Nagel, Political Law, Legalistic Politics: A Recent History of the Political Question Doctrine, 56 U. CHI. L. REV. 643, 643, 668–69 (1989); Louis Michael Seidman, The Secret Life of the Political Question Doctrine, 37 J. MARSHALL L. REV. 441, 441–44 (2004); Mark Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine, 80 N.C. L. REV. 1203, 1203–06 (2002). The contemporary Supreme Court itself recognized this need for judicial deference in its 2019 Rucho v. Common Cause decision, when it declined to rule on the constitutionality of partisan gerrymandering. Footnote #5 content: 588 U.S. 684, 717–21 (2019). Although the challengers there argued that the Equal Protection Clause made partisan gerrymandering unconstitutional, the Court held that the Equal Protection Clause’s lack of judicially manageable standards was enough to render the constitutional challenge a nonjusticiable political question. Footnote #6 content: See id. at 691, 717–19.
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