As we hurtle toward a resolution of the matter, I am struggling to intuit what the principled case could be in favor of the Supreme Court’s failing to strike down affirmative action this time. It seems to me that, irrespective of one’s preferred judicial philosophy, the logic leads inexorably to the Court’s nixing the practice. Originalist, non-originalist, “living constitutionalist” — whatever. Unless you truly think that the Court ought to just do what you personally prefer — or you think that Americans should be governed indefinitely by an unmoored and unelected Council of Experts — the outcome should be clear, no?
