10. Justice O’Connor now suggests that the social-science evidence on which it was based is shaky.
9. The social-science evidence on which it was based is getting shakier, as more and more disinterested research is done.
8. There should not be a social-science exception to the Constitution’s Equal Protection Clause anyhow.
7. In a variety of ways, using racial and ethnic preferences actually aggravates the achievement disparities that prompted Justice O’Connor to allow preferences in the first place.
6. America is becoming increasingly multiethnic and multiracial, and in such a nation it is untenable to have a legal regime that sorts people on the basis of their skin color and what country their ancestors came from.
5. Individual Americans are becoming increasingly multiethnic and multiracial, too, which makes racial and ethnic preferences even more unwieldy and untenable.
4. Justice Alito is more likely to get it right than Justice O’Connor was.
3. Who knows when one of the dissenters in Grutter will be replaced by an Obama appointee?
2. Twenty-five years is too long to leave on the books a bad decision that affects thousands of students every year.
1. The Equal Protection Clause makes it illegal to “deny to any person… the equal protection of the laws.”
In yesterday’s Commentary section, we listed a discussion by George Leef of Justice O’Connor’s second thoughts on Grutter v. Bollinger–her 2003 opinion that upheld racial and ethnic admission preferences at the University of Michigan law school. O’Connor also said she “expected” that in 25 years preferences would no longer be needed.