Justice Kennedy’s Stricter Scrutiny and the Future of Racial Diversity Promotion

By Nelson Lund
November 07, 2008
More than half a century after Brown v. Board of Education, the Supreme Court is closely and bitterly divided about the meaning of that decision, and about the meaning of the Equal Protection Clause to which it appealed. Th e fi rst major decision of the Roberts Court, Parents Involved in Community Schools v. Seattle School Dist. No. 1, took a small step away from a constitutional vision that permits racial discrimination by the government whenever courts believe that the eff ects on society will be salutary. Amid the doctrinal shambles created by the Rehnquist Court, this is a healthy development. We may hope, but should not assume, that the Court will take signifi cant additional actions to curtail the use of racial classifi cations by the government, and by private parties subject to statutes that on their face forbid racial discrimination. It is also quite possible that new appointments to the Court will produce a massive shift in the other direction, which would open the way for the entrenchment and expansion of racially discriminatory policies throughout American society...