The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies

The Supreme Court's first twenty-five years of affirmative action decisions have generated a body of case law that has fluctuated over time, but now disfavors racial affirmative action. That body of law has identified a number of subsidiary issues that are relevant to the constitutionality of affirmative action, and it has offered tentative resolutions to some of those issues while leaving other issues largely unresolved. The law that has developed over the course of the Court's first twenty-five-year engagement with affirmative action is not doctrinally stable. Rather, the Supreme Court's law of affirmative action seems highly dependent upon the political preferences of the justices who happened to be sitting on the Court when particular cases were decided. Moreover, because many of the Supreme Court's affirmative action cases have been decided by a bare 5–4 majority of the Court, subsequent Supreme Court appointments are likely to have a significant effect on the direction of future developments in the Supreme Court's law of affirmative action. Nevertheless, it is possible to make certain statistical observations about the Court's affirmative action cases, and about the voting behavior of individual justices with respect to many of the subsidiary issues that the Court has identified as relevant to the constitutionality of affirmative action. At the moment, the affirmative action voting blocs on the Supreme Court appear to be relatively stable. This suggests that most de jure affirmative action programs—programs making explicit use of racial classifications—will continue to be invalidated by the Supreme Court as long as the Court's personnel remains the same. However, the manner in which the unresolved doctrinal issues relevant to affirmative action will ultimately be resolved remains uncertain. It is also uncertain how receptive the Court will be to the substitution of de facto affirmative action—affirmative action making use of nonracial classifications that correlate with race—for the de jure affirmative action that the current Court disfavors. Predictions about the future law of affirmative action can best be made through the time-hon

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