Equality and Identity Hierarchy
There is little if any recent scholarship advancing a theory of equality that actually describes the Supreme Court’s equal protection jurisprudence. There are, of course, numerous normative theories. Typically, they propound what constitutional equality ought to entail and either highlight the Court’s failure to interpret the Equal Protection Clause in a manner that is consistent with that normative vision and/or propose a new test that is consistent with it. Unlike that scholarship, this paper advances a theory of equality that actually describes the Court’s recent equal protection jurisprudence. Many scholars have lamented that the Court’s Fourteenth Amendment jurisprudence is inscrutable and ad hoc. At first glance, recent equal protection cases appear to confirm these criticisms. This article, however, contends that liberal theories of equality and identity help to explain these cases.
This article will focus on recent affirmative action and redistricting cases where the Court has rendered “doctrinally awkward” decisions that are difficult to square with precedent. The Court sounded the death knell for affirmative action more than a decade ago when it decided that “colorblindness” required that strict scrutiny apply to all such programs. In 2003, however, the Court in Grutter v. Bollinger upheld the University of Michigan Law School’s affirmative action program, concluding that it furthered the state’s compelling interest in diversity and that it was narrowly tailored because it treated applicants as “individuals” and not just members of a racial group. Many noted that the Court’s application of strict scrutiny seemed considerably more relaxed than the word “strict” suggests. At the very least, the Court’s result is in-consistent with any straightforward understanding of “colorblindness,” which prohibits the use of race in public decision-making. In Gratz v. Bollinger, a companion case to Grutter, the Court, struck down the University of Michigan’s undergraduate affirmative action admissions policy for not being narrowly tailored.9 The Court determined that, unlike the Law School’s program, the under-graduate program failed to treat applicants as “individuals” be-cause it awarded a fixed number of points to minority applicants.10In tandem, Grutter and Gratz evince the Court’s commitment to vigilantly policing “benign” racial classifications11 and its unwillingness to embrace a categorical colorblindness approach.
