The Supreme Court has developed a robust equal protection jurisprudence to recognize the rights of whites complaining of race conscious governmental activity. This was particularly reflected in the Court’s opinion in Parents Involved, where the Roberts Court radically repositioned the meaning of Brown v. Board of Education. That opinion all but guarantees that eventually Abigail Noel Fisher will win her case against the University of Texas. In the meantime, however, the case also holds promise for minority plaintiffs. While many have lamented Parents Involved and its use of Brown, we have missed the promise of the Roberts Court’s “process-only discrimination” for minority plaintiffs. This Article argues that the Roberts Court adopted a version of color-blind jurisprudence so unconditional and absolute that it unintentionally, but unmistakably, offers great promise to nonwhite plaintiffs. By making unlawful any different treatment of an individual by race, regardless of whether it has substantive consequences, the Roberts Court expanded what is actionable under the Equal Protection Clause of the Fourteenth Amendment, not just for white plaintiffs but also for minority plaintiffs. This Article unpacks that promise, and attempts to hold Chief Justice John Roberts accountable for all the consequences of his absolute commitment to color-blind jurisprudence.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital