The conservative movement in law has changed substantially in the last half century. At the beginning it was a reactionary movement. The core consensus was that the Warren Court has been out of control, acting more like politicians focused on changing society rather like justices following the law. Insofar as conservatives even had a theoretical critique, its essence varied. One was that Court was activist in that it failed to pay sufficient deference to the political branches. A second was that it abandoned the craft of law, generally defined as following precedent or neutral principles that can be derived from precedents and legal process. A third was that the Court had abandoned the principles of the Founding or intent of the Framers. A final was substantive: the Court’s decisions, particularly in the area of criminal justice, were simply too liberal.
Fifty years on, the movement looks completely different in theory, power, and effect. As to theory, public meaning originalism, albeit of different varieties, dominates. While there are disagreements about the degree of deference, if any, owed the political branches, there is a growing consensus that this question is just another one to be answered by originalism. Perhaps the most important unsettled question is the place of precedent in originalism. But the view that precedent should be a generative force in law is no longer widely supported by theorists on the right. And since conservatives are now adherents of originalism, their methods sometimes support liberal results, particularly in the area of criminal justice.
As to power, during the Warren years, only a very few conservative scholars of public law worked in its shadow. Now originalism has many advocates in the academy and outside, and almost all conservative scholars who publish on the theory of constitutionalism are originalists.
In France the President cannot appoint a cabinet of his own choosing, if the legislature is controlled by a majority of the opposition party. Instead, cohabitation results, where the prime minister and most of the cabinet members reflect the views of the party with a legislative majority as much as they do the President. Thus, newly elected President Emmanuel Macron is running very hard to get a majority for his party, En Marche!, in the French General Assembly in the coming legislative elections.
While the Supreme Court’s decision in Fisher is understood as tightening somewhat the scrutiny of a university’s admission plan that pursues racial diversity, the question is how much it does so. I thought it might be useful to explore the majority’s discussion a bit by considering on which issues universities are entitled to deference.
The Fisher majority drew the familiar distinction in the Equal Protection context of 1) the requirement that government pursue a compelling state interest and 2) that it do so with narrowly tailored means.
The decision in Grutter was unusual in that it conferred deference on the university as to its admission plan, even though the university was subject to strict scrutiny. The question addressed in Fisher was whether the deference extended only to the end or to the means as well. Fisher held that the deference extended only to the end.
Under Fisher, the Court held that the end of pursuing a diverse class is a compelling interest. The diversity is not supposed to be solely that of racial diversity, but instead a diversity of various aspects “of which racial or ethnic origin is but a single though important element.”
A key question here is, how much of the diversity can be racial? How much weight can be given to race in choosing the class? The Court indicated that the diversity cannot involve a specified percentage or quota based on race. But how important can race be – as compared to other types of diversity such as geographic and as to merit factors such as grades and test scores?