By Mark Tushnet
The first post on this topic briefly discussed what a new Supreme Court might do about campaign finance regulation. I suggested that the best course would be to go back to the beginning, rather than try to work within the framework developed over the past forty years. Doing so would allow a new Court both to eliminate much of the doctrinal complexity in the field and, far more important, to place the constitutional analysis of campaign finance regulation on a firmer footing.
Something similar might be done about affirmative action. Ever since Bakke, the constitutionality of affirmative action has turned on the argument that sometimes affirmative action can promote a valuable diversity in the institutions where it occurs. But, really, that wasn’t the motivation for affirmative action in the first place, nor is it, I think, the central motivation for those who support affirmative action today. [Read more…] about Thinking About an Agenda for a New Supreme Court, Part II