David Simson (New York Law School) has posted Conceptual Gerrymandering and the Weaponization of SFFA on SSRN. Here is the abstract:
This Article makes two main contributions at the intersection of Constitutional Law and critical analyses of race and racial (in)equality. First, and more narrowly, the Article provides an in-depth analysis and critique of the Supreme Court’s most recent affirmative action decision in Students for Fair Admission v. Harvard / UNC (SFFA), specifically with respect to a crucial aspect of the case that has not been addressed in depth in other scholarship on the decision: how key opinions conceptualize “race” in their reasoning. The Article shows how the SFFA majority opinion and a concurring opinion by Justice Gorsuch incorporate multiple, and inconsistent, understandings of what “race” “is” and means in different parts of their analysis. It also illustrates how these inconsistencies are not random or arbitrary, but instead appear to be the product of the pursuit of ideological preferences for maintaining the hierarchical status quo in which American society is ordered along racial lines. Second, and more broadly, the Article provides a theoretical framework that explains how and why we should understand such decisionmaking as what I call “conceptual gerrymandering.” This concept is part of a broader framework for analyzing Supreme Court decisionmaking—which I call “jurisprudential gerrymandering” analysis—that is intended, among other things, to help facilitate more substantive discussion and critique of Supreme Court decisionmaking, especially between people who generally disagree with each other about the decisions of the Court. The Article situates these two contributions in the context of how SFFA has been mobilized by other actors (in particular, in recent actions by the executive branch). It concludes by discussing what my analysis suggests for how we should think about and respond to this recent “weaponization” of SFFA, as well as how we might more productively engage with each other on the complex topic of race more generally.