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With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state of the Court’s race-based equal protection jurisprudence, and then examine how a one- or two-justice shift, either to the right or to the left, would change this jurisprudence to embody one of the competing visions of the Constitution.


Supreme Court of the United States, SCOTUS, constitutional law, jurisprudence, Fourteenth Amendment, judicial politics, racial classifications, affirmative action, remediation, disparate impact, strict and heightened scrutiny

Publication Title

University of Chicago Law Review Online

Publication Citation

83 U. Chi. L. Rev. Online 36 (2016).