Strict Scrutiny The Lower Courts Punch Up
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Sep 8, 2025 Justin Driver, Robert R. Slaughter Professor of Law at Yale and author of 'The Fall of Affirmative Action,' discusses the recent Supreme Court changes affecting education and diversity. He delves into the consequences of abolishing affirmative action, highlighting its impact on Black student experiences and the complexities of racial dynamics in academia. The conversation also explores how universities can maintain diversity without traditional affirmative action, raising questions about the future of equal opportunity in higher education.
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Kavanaugh Admits Shadow Docket Fractures
- Justice Brett Kavanaugh admitted shadow-docket orders are cryptic partly because five justices can't reach consensus on rationales.
- That admission underscores why lower courts struggle to interpret emergency orders lacking majority explanations.
Barrett Defends And Embraces Opacity
- Justice Amy Coney Barrett defended the shadow docket, saying the Court must decide emergency applications while also admitting glossing over issues can be deliberate.
- Her comments suggest opacity is sometimes intentional, increasing unpredictability for lower courts and litigants.
SFFA Bans 'Race Qua Race' But Leaves Room
- Justin Driver argues SFFA forbids considering 'race qua race' but still allows policies made with an eye toward racial diversity.
- He stresses SFFA's scope is narrower than some political actors claim, leaving room for race-conscious but non-classifying actions.
