Fisher v. University of Texas at Austin: An Imagined Opinion, Concurring in the Judgment

In FISHER v. UNIVERSITY OF TEXAS AT AUSTIN, decided on June 23, 2016, the Supreme Court of the United States ruled that the race-based admissions system at issue in the case did not violate the Equal Protection Clause. Whether the Court’s ruling was correct is one question; whether, even if the ruling was correct, the Court’s rationale was correct is, of course, a different question.This brief paper is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in Court’s judgment. Justice Nemo explains, in her opinion, why the Court’s rationale is deeply problematic as a matter of proper constitutional interpretation. Justice Nemo believes that the rationale she articulates in her concurring opinion is in alignment with the theory of judicial review elaborated and defended in this paper: Michael J. Perry, “A Theory of Judicial Review,” http://ssrn.com/abstract=2624978.For another concurring opinion by Justice Nemo — her concurring opinion, last June, in the same-sex marriage case — see Michael J. Perry, “OBERGEFELL v. HODGES: An Imagined Opinion, Concurring in the Judgment,” http://ssrn.com/abstract=2624022.