Taking a broader view of #FairvHarvard, the majority opinion and the concurrences fit the #Lochner paradigm. As in #Dobbs and #Bruen, Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett all stake out a position divorced from the reality of American life and arrived at by radical, formalist reasoning. Ultimately, dissatisfaction with this sort of decisionmaking led to the New Deal legal revolution. Dissatisfaction with it may yet birth another sea change in US law. 10/10 #LawFedi

Sotomayor’s discussion of the majority’s disregard for #precedent is crucially important. She shows the lawlessness of the decision, the same lawlessness shown in cases like #Dobbs and #Bruen, other decisions where the current right-wing majority ignores settled case law and substitutes its own radical conclusions without any basis in law or fact. This is, as I’ve argued elsewhere, quintessentially tyrannical. 8/ #FAIRvHarvard #LawFedi

In his opinion for the majority, #JohnRoberts maintains that #FairvHarvard does not overrule #GruttervBollinger, the relatively recent #SupremeCourt decision holding that race may be a consideration in higher education admissions. Roberts argues that Fair is merely implementing Grutter. Sotomayor is particularly good in her rebuttal, quoted in next post in this thread. 6/

For those interested in the #history of the #14thA and its role in #Reconstruction, Sotomayor’s dissent does a good job of explaining the “race-conscious” programs and policies the #14thA justified, such as the #FreedmensBureau. Sotomayor explains how programs like affirmative action in higher education continue this heritage, promoting full democratic participation by those who have been excluded because of their race. 5/ #FairvHarvard #LawFedi

The lead dissent, by #SoniaSotomayor, demonstrates that the history of the #14thA shows that Americans, including those that wrote and ratified the amendment, have always known that race in the U.S. sets up a caste system in support of #WhiteSupremacy. As Sotomayor writes “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.” #FairvHarvard #LawFedi 4/

The majority detaches the #14thA from its history, maintaining that it forbids almost all recognition of race in government or government-funded decisions. #JohnRoberts, for the majority, claims that there is no compelling interest in racially diverse student bodies in institutions of higher education. 3/ #FairvHarvard

The multiple opinions in #FairvHarvard run to over 200 pages altogether. I’m not trying to analyze them all or any in exhaustive detail. Fundamentally: the majority adopts an ahistorical, formalistic, “color-blind” reading of the #EqualProtectionClause of the #14thAmendment, and the dissenters assert an interpretation rooted in facts, past and present, about race, subordination, and #democracy in the U.S. 2/