Puzzles re: Grutter and Korematsu

[Stephen M. Griffin]

I think a number of law review articles have pointed out that one effect of the affirmative action cases has been to force the Court to develop the meaning of compelling interest and narrow tailoring.  Prior to these cases, many assumed that strict scrutiny was fatal in fact.  Once O'Connor stated that it was not, the way was open for doctrinal development.

 

I don't see how you could say without a detailed inquiry that it is obvious that O'Connor did not apply strict scrutiny in Grutter.  After all, Justice Powell applied strict scrutiny seemingly in good faith in Bakke and found that the Harvard Plan satisfied that standard.

 

Perhaps there is skepticism on this point because it is hard to imagine a compelling interest that would justify racial discrimination.  However, one clear candidate for a compelling interest is an interest protected by the Constitution itself.  That's why Justice Powell's emphasis on academic freedom and the first amendment remained relevant in Grutter.  Upholding Michigan's discretion and deferring to their judgment serves constitutional values.  Constitutional values are compelling interests.

 

Stephen M. Griffin
Vice Dean of Academic Affairs
Rutledge C. Clement, Jr. Professor in Constitutional Law
Tulane Law School
6329 Freret Street
New Orleans, LA 70118
(504) 865-5933 (voice)
(504) 862-8856 (fax)
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-----Original Message-----
From: Sanford Levinson [mailto:[EMAIL PROTECTED]
Sent: Wednesday, June 25, 2003 10:16 AM
To: [EMAIL PROTECTED]
Subject: Re: Puzzles re: Grutter and Korematsu

Bobby Lipkin asks:

First, is there a uniform standard of strict scrutiny?