Puzzling through SFFA: The Roberts Court, Affirmative Action, and the Backstopping of Minority Rule

Anthony Chen, Northwestern University
Lisa Stulberg, NYU

Students for Fair Admissions v. Harvard (2023) is widely and rightly recognized as a landmark Supreme Court decision. This ruling on the future of race-conscious affirmative action in higher education has sparked jubilation and lamentation in equal measure. But it also presents a series of puzzles that have yet to receive the close attention they deserve: Its legal reasoning is jurisprudentially convoluted, Asian Americans are involved in a strikingly phantasmagorical manner, and it is not quite clear what it suggests about the state and fate of American democracy. This paper grapples with all three puzzles. Drawing on close readings of the trial record, appellate rulings, SCOTUS opinions, and political and legal reporting, it argues that they can be understood by considering not only the ways that the conservative legal movement has succeeded in reshaping American law and politics but also the limits of its success.

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 Presented in Session 213. American Politics in Transition: Economic Nationalism, Legal Battles, and Geopolitical Challenges