From Volume 77, Number 3 (March 2004)
The immediate impact of Grutter v. Bollinger and Gratz v. Bollinger is nothing short of momentous. Not only do the Supreme Court’s most recent affirmative action decisions settle the deeply contested question of whether race may be considered in higher education admissions, but they also, more broadly, envision permissible and impermissible uses of racial classifications in that context, and surface new, challenging questions about the official use of affirmative action.
Yet Grutter and Gratz are also momentous for what they tell us about the long-term struggle over the structure of equal protection doctrine. This struggle, which has been under way for decades, will affect the future of equality analyses far beyond affirmative action.
Specifically, two interrelated developments have shaken the foundations of the Court’s three-tiered equal protection framework. First, as evidenced in Grutter and Gratz, the categorical application of rigorous review to suspect classifications has become its own battleground, complete with disputes over whether context should affect the strictness of strict scrutiny. Second, at the other end of the equal protection spectrum, the Court’s rational basis jurisprudence wavers between its typical deference to government decisionmaking and the occasional insistence on meaningful review, without a unifying theory for meshing the two seemingly distinct approaches.