Anti-Subordination in the Equal Protection Clause: A Case Study
In recent years, many scholars have argued that the U.S. Supreme Court has moved away from following an anti-subordination approach to the Equal Protection Clause of the Fourteenth Amendment and toward an anti-classification approach. In turn, advocates have shied away from anti-subordination arguments in the equal protection cases that are brought before the U.S. Supreme Court. Discussing the briefs and oral argument from Fisher v. University of Texas at Austin as an example, this Note argues that underemphasizing anti-subordination principles is detrimental to equal protection doctrine because these arguments help steer the Court in the right direction. When historical context and ongoing inequitable realities are not incorporated into the doctrine, equal protection moves further from its core mission—ensuring equal treatment under the laws. In addition, the gains for people of color and other marginalized communities will be on tenuous ground without full emphasis on inequality. Advocates must use anti-subordination arguments in order to engage the Court and Justices in the slow process of struggling for a more just world.