The Supreme Court's invidious discrimination jurisprudence has manifested a pattern in which one sense of "invidious" is used in certain kinds of cases and a different sense in other (although relevantly similar) kinds of cases. The Court's decisions are inconsistent with respect to both when the Court will presume antipathy and to when the presence of antipathy will be either a necessary or a sufficient condition for a policy's unconstitutionality. Both patterns disadvantage minorities. Examples are offered from both higher education and employment contexts. It is exactly this kind of patterned, subtle alteration both of the meanings of key terms and of the presumptions about the presence and importance of antipathy which (a) allows some of the racial progress that has been made to be lost, (b) promotes the view that the Court itself lacks intellectual integrity, and (c) promotes the view that racism, sexism, etc., involve practices no less acceptable than affirmative action policies which seek to rectify injustices that have occurred in this country. For both theoretical and practical reasons, the Court's position must change.
The Invidiousness of Invidiousness: On the Supreme Court's Affirmative Action Jurisprudence,
21 Hastings Bus L.J. 323
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol21/iss2/4