The government can't shield wrongly decided cases from the Constitution

October 12, 2012 | By JONATHAN WOOD

During the Fisher oral argument (previously summarized here), Justice Breyer directly asked Abigail Fisher’s (the young woman who was denied admission to UT because of her race) lawyer whether the case that authorizes this unconstitutional discrimination should be overruled:

JUSTICE BREYER:  If you are going to the merits, I want to know whether you want us to — or are asking us to overrule Grutter. Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed. And so, are you? And, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on? (emphasis added)

Fisher’s attorney did not take this opportunity to explain why Grutter should be overruled, so we didn’t learn which or how many people Justice Breyer referred to.  So-called reliance interests are important because the Court is hesitant to overturn its prior cases when people have relied on those earlier decisions.

But this concern isn’t present in Fisher.  As we explained in our friend-of-the-court brief, racial discrimination simply doesn’t create these so-called reliance interests:

Finally, overturning Grutter would not raise the  same reliance concerns that were present in Planned  Parenthood v. Casey. “The inquiry into reliance counts the cost of a rule’s  repudiation as it would fall on those who have relied  reasonably on the rule’s continued application.” The nature of race-based preferences simply  doesn’t create significant reliance interests. No government institution is required to institute  race-based preferences, and states are moving to prohibit the continued use of race-based classifications.  Even Grutter itself recognized that “all race-conscious  admissions programs have a termination point.”

The only people that Justice Breyer could possibly be referring to are the state officials who have relied on Grutter to set up racially discriminatory college admissions programs.  Of course this reliance can’t be the basis for permitting unconstitutional discrimination to continue. It would make a mockery of our Constitution for the Court to refuse to say that the government has violated the Constitution simply because the government has violated the Constitution!  The Courts have a duty to enforce the limits that the Constitution imposes on the government which can’t be so easily abrogated.

Fortunately, the Supreme Court has expressly rejected government reliance as a reason not to overturn bad precedent.  Nothing in the oral arguments or the briefs provides a justification to abandon this rule.  As the Court explained in Citizens United, this rule is compelled by the Constitution:

As the Court stated in Payne v. Tennessee, reliance interests are important considerations in property and contract cases, where parties may have acted in conformance with existing legal rules in order to conduct transactions. Here, though, parties have been prevented from acting—corporations have been banned from making independent expenditures. Legislatures may have enacted bans on corporate expenditures believing that those bans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us from overruling our own precedents, thereby interfering with our duty “to say what the law is.”