Roberts Rules of (Dis)Order: Doctrinal Doublespeak on Affirmative Action and Stare Decisis

Abstract

In this Article, I argue that Chief Justice John Roberts engaged in doublespeak in his SFFA v. Harvard/UNC majority opinion. He essentially overruled Grutter v. Bollinger (2003) but did not admit doing so, and even structured the SFFA opinion as if he was following Grutter’s precedent. My Article considers why Chief Justice Roberts engaged in this “stealth overruling” of Grutter and exposes his doctrinal sleight of hand in doing so. I first consider how Chief Justice Roberts may have been concerned about the Court’s legitimacy in the wake of its ruling in Dobbs v. Jackson Women’s Health Organization (2022)—where it explicitly overruled Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)—and how that might have influenced his approach to SFFA. Subsequently, I show how throughout the SFFA majority opinion, Chief Justice Roberts either misrepresented Grutter or exploited ambiguities and inconsistencies in Grutter’s doctrine to serve his agenda. I examine the SFFA majority’s treatment of various issues related to the constitutionality of race-conscious admissions policies. These include the compelling interest in diversity, deference to universities on defining their educational missions, the incidental burden of race-conscious policies on certain groups, the use of racial categories, “logical” and arbitrary endpoints for race-conscious admissions, the so-called essay loophole, and the possible military exception. The conclusion considers the consequences of SFFA’s stealth overruling of Grutter: the controversies it could lead to, and its potential impact on the Court’s legitimacy—another matter laden with ironic twists.