Affirmative Refraction: Grutter V. Bollinger through the Lens of the Case of the Speluncean Explorers

Article excerpt

What can a fifty year-old hypothetical about human cannibalism concocted by the late Lon Fuller (1) teach us about the Supreme Court's recent foray into the affirmative action debate in twenty-first century America? (2) Indeed, what can a tax law professor and a labor law professor add to the cacophony of voices of leading constitutional law scholars on the Court's most important pronouncement on race in a generation? (3) We make a rather modest claim, based on teaching both of these cases in our one-week Introduction to Law classes for incoming first year students, (4) that a helpful way to view Grutter v. Bollinger (5) is through the lens of The Case of the Speluncean Explorers. (6) Legal scholars have issued dozens of new "opinions" on the hypothetical legal issue in that case to take into account contemporary legal theories developed in the past fifty-five years. (7) This Article is the first to take the opposite approach (8) and view a real-life legal issue through the eyes of the fictional Justices in The Case of the Speluncean Explorers. This Article also is the first to consider the applicability of Fuller's hypothetical outside the context of statutory construction.

We argue that the various opinions in Grutter find their intellectual forebears in the opinions in The Case of the Speluncean Explorers. For all the heat generated by Grutter, the opinions merely mark another way station in the centuries-old debate among competing philosophies of the role of law and government. By examining the Grutter opinions in the context of this rich jurisprudential tradition, we hope to elevate much of the current debate about the case, in which labels like "liberal" and "conservative" are hurled about like epithets, toward a more sophisticated understanding of how the various Justices' approaches embody alternative views of the proper judicial function in our democracy.

Parts I and II of this Article describe the facts and opinions in The Case of the Speluncean Explorers and Grutter. Part III then draws some rather surprising connections between these very different cases by using what we call a "jurisprudence of humility." We explain how the disparate opinions in Grutter can be understood in the context of the issues addressed by the mythical justices in The Case of the Speluncean Explorers over half a century ago. Although a jurisprudence of humility does not make it any easier to decide difficult issues like the constitutionality of racial classifications in university admissions or the applicability of a murder statute to stranded cave explorers who kill and eat a colleague, this framework illuminates how different theories of the proper role of courts affect the decisions made by judges. A better appreciation of these theories, in turn, will help inform lawyers who practice before those judges and law professors who write about them.


In the faraway year of 4299 in the mythical jurisdiction of Newgarth, (9) five members of an amateur society of cave-explorers (the Speluncean Society) are trapped after a landslide covers the opening of a cave they are exploring. (10) A frantic rescue effort is launched, (11) but the explorers' provisions will be depleted before the rescuers can reach them. On the twentieth day of the ordeal, rescuers make radio contact and tell the explorers that it will take at least ten days to free them. Medical experts inform the explorers that there is "little possibility" they will survive the ten days without food. When asked by Richard Whetmore, one of the explorers, the experts report that four of them could survive if they kill and eat the flesh of the fifth member of the group. When Whetmore asks whether they should draw lots to pick the explorer to be killed and eaten, the medical experts refuse to answer, and Whetmore's requests for guidance from judges, government officials, and clergy go unheeded. Three days later, Whetmore is killed and eaten by the other four explorers after they draw lots by throwing dice. …