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Buffalo Law Review

First Page

1377

Document Type

Article

Abstract

This Article makes two main contributions at the intersection of Constitutional Law and critical analyses of race and racial (in)equality. First, and more narrowly, the Article provides an in-depth analysis and critique of the Supreme Court’s most recent affirmative action decision in Students for Fair Admission v. Harvard (SFFA), specifically with respect to a crucial aspect of the case that has not been addressed in depth in other scholarship on the decision: how key opinions conceptualize “race” in their reasoning. The Article shows how the SFFA majority opinion and a concurring opinion by Justice Gorsuch incorporate multiple, and inconsistent, understandings of what “race” “is” and means in different parts of their analysis. It also illustrates how these inconsistencies are not random or arbitrary but instead appear to be the product of the pursuit of ideological preferences for maintaining the hierarchical status quo in which American society is ordered along racial lines. Second, and more broadly, the Article provides a theoretical framework that explains how and why we should understand such decision making as “conceptual gerrymandering.” This concept is part of a broader framework for analyzing Supreme Court decision making which I call “jurisprudential gerrymandering” analysis, and which aims to uncover if, when, and how Justices manipulate or distort their jurisprudential choices in order to implement their political or ideological preferences for how society should be organized. Jurisprudential gerrymandering analysis aims to provide a shared vocabulary and conceptual framework that facilitates more substantive discussion and debate about Supreme Court decision making, especially between people who generally disagree with each other about the decisions of the Court, by focusing on whether the Justices’ work meets widely shared expectations for how the Justices ought to exercise their institutional role and craft their work product. The Article situates these two contributions in the context of how SFFA has been mobilized by other actors (in particular, in recent actions by the executive branch). The Article concludes by discussing what its analysis suggests for how one might think about and respond to this recent “weaponization” of SFFA, as well as for how we might more productively engage with each other on the complex topic of race more generally.

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