Obama’s judgement call

In this case, Fisher versus the University of Texas, the four liberal justices will vote to uphold the challenged affirmative action programme, on the ground that the constitutional guarantee of equality was designed especially to protect African-Americans and that affirmative action is a reasonable and necessary way to achieve equality in the US. I predict that the five conservative justices will all vote to hold affirmative action unconstitutional, on the theory that the government can never treat people differently because of their race, even if the purpose is to rectify past racism. If I am right in this prediction, Fisher will have a dramatic and negative impact on equality in the US.

We do not know at present which, if any, of the current nine justices may die or retire in the next four years. What we do know is that it matters greatly to the future of the law and the nation that Barack Obama, rather than Mitt Romney, will have the opportunity to fill any vacancy that may arise.

The writer is distinguished service professor of law at the University of Chicago


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