The Supreme Court's grant of certiorari yesterday in Fisher v. University of Texas makes this post particularly timely…

At The Faculty Lounge, Alfred Brophy: Starkey on Inconsistent Originalism.

Professor Brophy's post highlights a 2010 article by Brando Starkey (Villanova Law): Inconsistent Originalism and the Need for Equal Protection Re-Invigoration, which among other things makes the recurring critique that Justices Scalia and Thomas (and their originalist academic allies) have not made much of an originalist case against affirmative action.   From Professor Starkey's abstract:

I argue that the Fourteenth Amendment’s original understanding is an anachronism and the future of the intent doctrine must not hinge on the ratifying generation’s formulation. Originalists implicitly agree with this contention. Indeed, Originalists’ equal protection opinions, particularly involving affirmative action, confound anyone with a basic knowledge of the Fourteenth Amendment’s legislative history. Originalists best establish how much the original understanding of the Fourteenth Amendment is unhelpful in dealing with contemporary race issues.

Professor Brophy comments in part:

I continue to be surprised by the extent to which talk of originalism dominates our thinking, but as Brando points out one looking towards an expanded equal protection principle probably needs to deal with rather circumscribed original meaning.  What he does here is point out that sometimes we depart from original understanding — such as the argument that the fourteenth amendment was colorblind, when substantial evidence suggests that it do not originally prohibit segregated schools.  Pointing out this inconsistency is an important (if somewhat dicey) proposition — for it argues that the Fourteenth Amendment allows race-conscious discrimination.  All of that goes to show that originalists have departed in certain circumstances from what originalism counsels.  If they have done so in some cases, then perhaps they should do so in others….  There is a lot to this article; I hope you have the chance to read it.

My view is that the failure adequately to explain the anti-affirmative action decisions on originalist grounds is a serious weakness in the Scalia/Thomas jurisprudence.  (I'm not saying they can't be so explained, only that they haven't been).  If I'm overlooking important originalist scholarship on this issue please let me know.  With the Fisher case coming up next Term, this is a good time for originalists who care about this issue to get to work.

Posted at 7:00 AM