Yuvraj Joshi

美国种族正义的反对者经常将对和平、稳定与和谐的渴望作为武器，阻碍种族平等的 实现。本文探讨了历史上以及在有关财产、教育、抗议和公共事业的法律案件中和平武器化 的问题。这些和平主张往往是在缺乏证据或证据不足的情况下恶意提出的，它们声称要解决 的不和谐问题实际上是敌视种族平等的结果。有一段时间，最高法院正是因为这些原因而拒 绝了占主导地位的和平诉求。本文进一步记录了和平武器化在当前限制“黑人生命事件”抗 议活动、诋毁警察拨款呼吁、取缔批判性种族理论和瓦解“反歧视行动”的尝试中的表现。 通过将这些历史和当代论点联系起来，本论文发现，主流的和平逻辑掩盖了亚群体感受到的 不公正、挫折和绝望。这篇文章呼吁对和平呼吁进行更仔细的审查，因为和平呼吁的主要作 用是扼杀对种族正义的追求，维持不平等的现状。

Racial resentment, which stems from perceptions that one racial group has unfairly lost opportunities to another group, has profoundly shaped decades of affirmative action law. Affirmative action emerged in the 1960s as an attempt to counteract racial discrimination and expand opportunities for racial minorities. However, some white applicants soon resented affirmative action because they felt the programs were taking away opportunities they deserved, unfairly benefiting other groups, or giving unearned advantages. Accordingly, they brought legal challenges arguing that affirmative action violates equal protection. From the 1970s to the 2010s, Supreme Court decisions on affirmative action in higher education sought to assuage this resentment. The Court restricted affirmative action programs to indirect consideration of race and diversity rationales, rather than more direct reliance on race and racial justice rationales.

The Supreme Court recently departed from this approach in Students for Fair Admissions (SFFA) v. Harvard, where it struck down longstanding race-conscious admissions programs. The plaintiff in SFFA leveraged resentments among white and Asian American communities to oppose affirmative action and the Court rewarded legal tactics that exploited such resentment. Rather than emphasizing diversity’s universal benefits, as previous rulings had done to reduce resentment, the Court endorsed a “zero-sum” perspective that saw the success of Black and Latinx students as an acceptable basis for others’ resentment. The Court also promoted a “colorblind” ideology that catered to white resentment while sustaining inequities, which could further provoke minority groups’ resentment.

While legal scholars have emphasized the seismic shift in equal protection law marked by SFFA v. Harvard, comparatively little attention has been paid to the accompanying shift in the Court’s responses to resentment. This Article helps readers understand this shift by introducing a novel framework categorizing past judicial postures toward racial resentment: (1) Vindication, in which justices endorsed resentment by highlighting the perceived cost of racial justice measures on white people; (2) Mitigation, where justices downplayed the role of race and racial justice to assuage resentment against affirmative action; and (3) Resilience, in which justices resisted and actively contested such resentment.

Viewing SFFA v. Harvard through the lens of this tripartite framework yields several insights. First, labeling the Court’s unabashed validation of resentment as “vindication” makes clear that in this case, the Court departed from decades of attempts to mitigate racial resentment through doctrine. This shift is particularly worrisome because of the threat that such racial resentment poses to a multiracial democracy. Recognizing the disadvantages of vindicating resentment, legal scholars may be tempted to call for a return to the status quo of the past half-century: “mitigation” of resentment. However, mitigating approaches have failed to foster social cohesion and perversely incentivized continued opposition to racial justice policies. Identifying an alternate “resilience” approach demonstrates that reflexively accepting resentment as legitimate and embedding it into law are not the only paths forward. Instead, justices, advocates, scholars, and others can strive to safeguard inclusive laws against backlash rooted in racial grievances.

American racial justice opponents regularly wield a desire for peace, stability, and harmony as a weapon to hinder movement toward racial equality. This Essay examines the weaponization of peace historically and in legal cases about property, education, protest, and public utilities. Such peace claims were often made in bad faith and with little or no evidence, and the discord they claimed to address was actually the result of hostility to racial equality. For a time, the Supreme Court rejected dominant peace claims for precisely these reasons. This Essay further documents the weaponization of peace in current attempts to restrict Black Lives Matter protests, denigrate calls for police defunding, outlaw critical race theory, and dismantle affirmative action. By linking these historical and contemporary arguments, this Essay finds that dominant logics of peace mask the injustice, frustration, and despair felt by subordinated groups. The Essay urges closer scrutiny of appeals to peace that primarily function to stifle the pursuit of racial justice and to maintain status quo inequality.

Racial time describes how inequality shapes people’s experiences and perceptions of time. This Article reviews the multidisciplinary literature on racial time and then demonstrates how Black activists have made claims about time that challenge prevailing norms. While white majorities often view racial justice measures as both too late and too soon, too fast and too long-lasting, Black activists remind us that justice measures are never “well timed” within hegemonic understandings of time. This Article ultimately argues that United States law embodies dominant interests in time. By inscribing dominant experiences and expectations of time into law, the Supreme Court enforces unrealistic timelines for racial remedies and ‘neutral’ time standards that disproportionately burden subordinated groups. Because the legal enactment of dominant time perpetuates structural inequalities, this Article urges United States legal actors to consider and incorporate subordinated perspectives on time. The Article concludes with a series of recommendations for centering these perspectives and rendering them intelligible and actionable in law.

Can political compromise harm democracy? Black advocates have answered this question for centuries, even as most academics have ignored their wisdom about the perils of compromise. This Article argues that America’s racial equality compromises have systematically restricted the rights of Black people, and have generated inequality and distrust, rather than justice and unity. In so doing, these compromises have impeded the achievement of a multiracial democracy.

Using unpublished archival documents, the Article examines how Black advocates throughout history approached compromises on equal rights. It examines how figures like Booker T. Washington, W. E. B. Du Bois, Martin Luther King, Jr., Bayard Rustin, and Fannie Lou Hamer conceived of historic compromises, what kinds of compromises they were willing and unwilling to make, and when they were prepared to sacrifice more ambitious goals for modest gains. This historical account shows that even “compromising” figures distinguished between principled and unprincipled compromises, and how pressures from “uncompromising” Black activists sometimes facilitated more just and effective outcomes—findings that prove useful for modern-day equality debates.

The Article then examines court decisions that have been central to making and breaking America’s racial equality compromises. This legal analysis reveals that American society is currently constrained by previous judicial compromises that have both failed to secure equality and curtailed society’s ability to battle inequality. Competing forces—from a Black Lives Matter movement demanding racial justice to a Roberts Court ready to unravel longstanding equality precedent—are now driving the United States to reconsider these earlier compromises. Unfortunately, the problematic features from the racial equality compromises of the past are recurring in those proposed for the present.

Ultimately, this Article investigates how past compromises might help us approach present and future ones. It describes common democracy-constraining features of compromises, including their disregard for fundamental humanity, drawing of false equivalences, exclusion of subordinated groups, emboldening of dominant groups, and endangerment of long-term change. The Article applies this framework to current debates over policing, voting rights, the Senate filibuster, and Supreme Court reform, and, using lessons from history, cautions against accepting democracy-constraining features in these contexts. This Article thus reconsiders the value of compromise by learning from Black advocates who lived through the consequences of past equality compromises.

The United States recently saw the largest racial justice protests in its history. An estimated 15 to 26 million people took to the streets over the police killings of Breonna Taylor, Tony McDade, George Floyd, and countless other Black people. This Article explores how these protests and their chants of “No Justice! No Peace!” should lead us to reconsider American equality law.

This Article surfaces legal claims—here called “peace–justice claims”—that address the relationship between ameliorating racial inequality and achieving peace. Using unpublished archival documents, it tells the story of how Americans embroiled in early desegregation debates sought competing visions of peace that either included or excluded justice. Furthermore, it demonstrates how the Supreme Court’s landmark decision in Cooper v. Aaron arbitrated those claims in favor of integration. This Article also traces how those claims have evolved and how the Court has used peace and justice considerations to limit rather than advance minority rights. This analysis shows that intertwined arguments about justice and peace lie at the heart of equal protection doctrine.

Using sources of both legal and social history to identify peace–justice claims, this Article contributes to a “new civil rights history,” expanding the scope of legal actors beyond lawyers and judges to include policymakers, social activists, and lay people. Juxtaposing minority claims with court-developed legal doctrine highlights the Supreme Court’s inadequate recognition of the peace–justice interests at stake. Proposing “No Justice! No Peace!” as a corrective to the law, this Article argues that courts should recognize the exclusion and estrangement of Black people as a basis for minority-protective interpretations of the Constitution.

This attention to peace–justice claims is enriched by insights from transitional justice, a field that aims to help societies to overcome conflict and oppression. Although societies require both peace and justice, these values sometimes appear in tension, leading to what is internationally known as the “peace versus justice dilemma.” Viewing American legal cases as sites of this dilemma draws attention to whether courts seek a “negative peace” based on the suppression of social conflict or a “positive peace” grounded in the pursuit of social justice. This Article demonstrates why and how American law should strive for positive peace by addressing structural inequalities.

The United States is a nation in transition, struggling to surmount its racist past. This transitional imperative underpins American race jurisprudence, yet the transitional bases of decisions are rarely acknowledged and sometimes even denied.

This Article uncovers two main ways that the Supreme Court has sought “racial transition.” While earlier decisions focused on “reckoning” with the legacies of racism, more recent decisions have prioritized “distancing” the United States of today from its antebellum and Jim Crow histories. With this shift, civil rights measures that were once deemed necessary and urgent have been declared inappropriate and outdated. By analyzing opinions concerning school desegregation, voting rights, affirmative action, and disparate impact in terms of reckoning and distancing, this Article provides key insights into racial equality law’s history as well as a glimpse into its likely future under the Roberts Court.

Because both reckoning and distancing approaches claim to advance transition, this Article evaluates these approaches from the perspective of transitional justice, a field that helps societies to overcome histories of oppression. This analysis highlights how the Supreme Court’s inadequate treatment of transitional justice values (accountability, redress, non-repetition, and reconciliation) has inhibited the United States’ racial transition. Transitional justice theory further offers a novel account of judicial disagreements and independent criteria for deciding which claims about transition should have purchase.

As protestors demand a reckoning with America’s legacies of racism, the Roberts Court appears poised to leave the past behind. A distancing jurisprudence limits not just what the Court sees as constitutionally required, but what it sees as constitutionally permissible in the pursuit of transition. This Article considers how advocates can seek to reorient race jurisprudence toward greater racial reckoning, while simultaneously pursuing reckoning through other means.

What role does affirmative action play in transitioning toward a more just society? The two literatures best equipped to answer this question—transitional justice and affirmative action—have neglected both the question and one another. Transitional justice scholars have focused on a limited set of measures (such as truth commissions and criminal prosecutions) and overlooked the role of affirmative action in facilitating transition. At the same time, affirmative action scholars have neglected the ways in which affirmative action may be part of a larger transitional justice project. Bringing these literatures into conversation for the first time, this Article shows how integrating affirmative action and transitional justice can advance our understanding of both practices. Affirmative action can bring attention to structural inequalities in transitional societies and help delineate the boundaries of transitional justice. In so doing, affirmative action can bridge a divide between the field of transitional justice and the phenomenon of societal transition that it seeks to understand and facilitate. Transitional justice, on the other hand, can elucidate how the period of transition informs affirmative action’s features and functions; it can also illuminate affirmative action’s strengths and shortcomings in bringing about a more just society. Affirmative action should, therefore, be added to the transitional justice “toolkit” and anchored in transitional justice concepts and debates.

(This article received an honorable mention for the 2021 Association of American Law Schools Mark Tushnet Prize in Comparative Law.)

Racial indirection describes practices that produce racially disproportionate results without the overt use of race. This Article demonstrates how racial indirection has allowed — and may continue to allow — efforts to desegregate America’s universities. By analyzing the Supreme Court’s affirmative action cases, the Article shows how specific features of affirmative action doctrine have required and incentivized racial indirection, and how these same features have helped sustain the constitutionality of affirmative action to this point. There is a basic constitutional principle that emerges from these cases: so long as the end is constitutionally permissible, the less direct the reliance on race to achieve that end, the less constitutionally problematic the means. The Article then discusses the potential benefits and costs of adopting indirection in affirmative action, and describes disagreements among Justices about the value of indirection that do not track along the usual ideological lines. Finally, anticipating a stable conservative majority on the Supreme Court, the Article expects affirmative action not to disappear but to be driven further underground — employing ever-less conspicuous considerations of race. In the American story of affirmative action, all paths lead to indirection — the task ahead is to determine the role that indirection may continue to play in desegregating universities.

In Fisher v. University of Texas in June 2016, the Supreme Court upheld the use of race-conscious affirmative action in college admissions. While recognizing a university’s interest in the educational benefits that derive from a diverse student body, Justice Kennedy cautioned in the majority opinion: “A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.”

Justice Kennedy’s measurability requirement is the single most important feature of his opinion. The constitutionality of race-conscious admissions going forward will depend on how universities measure diversity. No wonder critics of affirmative action are clamoring for disclosure of ever more data. The dilemma facing the nation’s universities is how to measure diversity while knowing that opponents of race-conscious admissions will utilize those metrics in litigation to challenge affirmative action programs.

In seeking to address this dilemma, university administrators reading Fisher may believe that they are required to measure diversity in more precise and even numerical terms. However, this Piece cautions against following that misguided impulse in the context of race-conscious admissions based on three primary observations. First, diversity-based affirmative action programs have survived past constitutional challenges in part because they are imprecise as to which individuals benefit from them and how much benefit those individuals receive. Second, this lack of precision may minimize some of the social divisiveness associated with race-conscious admissions policies, which may help diffuse political opposition to affirmative action and diminish the constitutional harms perceived by some Justices and potential litigants. Finally, Fisher does not actually require universities to measure diversity in more precise or numerical terms than previous affirmative action decisions. Given the current political climate, universities’ ability to maintain affirmative action programs under Fisher will depend on their ability to grasp and apply these principles.

To demonstrate the merits of imprecision in measuring diversity, this Piece proceeds in three parts. Part I surveys some key cases on affirmative action to show how and why the Court has been concerned with numerical considerations of race in college admissions. Part II examines two uses of numbers that have received scrutiny in cases leading up to Fisher: (1) the gathering of data on minority enrollment and student body diversity and (2) the use of metrics to describe diversity goals, especially the concept of “critical mass.” Part III studies scrutiny of the University of Texas’s admissions program in Fisher and teases out lessons for how universities should structure their admissions programs in light of Fisher. The Piece concludes that a degree of imprecision remains a requirement of constitutionally permissible affirmative action after Fisher, and universities interested in enrolling a diverse student body should therefore measure diversity using educational values rather than numerical metrics.

On June 23, 2016, the Supreme Court announced its much-anticipated decision in Fisher v. University of Texas at Austin, allowing affirmative action in college admissions to continue. No single feature of Fisher surprised court watchers more than its author, Justice Anthony Kennedy. As Richard Primus wrote in the New York Times: “[T]he most deceptive thing about it is its first words: ‘Justice Kennedy delivered the opinion of the court.’”

No wonder. Until Fisher, Justice Kennedy had never voted to uphold race- conscious affirmative action. In his 2003 dissent in Grutter v. Bollinger, he derided the majority for accepting the University of Michigan Law School’s use of the term “critical mass” to justify race-based affirmative action in admissions. No one would have predicted then that he would go on to deliver an opinion upholding affirmative action that invokes Grutter no less than a dozen times. How did Justice Kennedy go from affirmative action dissenter to defender?

Bakke is the key to understanding Justice Kennedy’s supposed reversal in Fisher. Commentators have missed this point, likely because Justice Kennedy’s Fisher opinion does not directly cite Bakke even once. But Justice Kennedy’s Grutter dissent adhered to Justice Powell’s opinion in the 1978 decision Regents of the University of California v. Bakke. In Bakke, Justice Powell allowed limited use of racial preferences in admissions decisions in the pursuit of a diverse student body so long as it satisfied strict scrutiny. “The opinion by Justice Powell, in my view, states the correct rule for resolving this case,” Kennedy wrote.

Justice Kennedy admired Justice Powell’s rule in Bakke yet detested its application in Grutter. He cautioned that Grutter diverged from Bakke in ways that would “perpetuate the hostilities that proper consideration of race is designed to avoid.” Fisher presented him with an opportunity to reset the shape and trajectory of affirmative action in line with Bakke.

This Essay demonstrates that we cannot understand the ruling in Fisher without looking at Bakke. Part I surveys the Bakke-Grutter-Fisher line of cases to explain how Grutter diverged from Bakke and why this bothered Justice Kennedy. Part II demonstrates how Fisher aims to preserve an understanding of affirmative action that is informed by Bakke and untainted by Grutter. Not only does Fisher describe affirmative action programs and precedent in ways that maintain fidelity to Bakke, but it also disregards aspects of Grutter that diverged from Bakke, including the use of critical mass as the measure of diversity. Part III identifies the concerns of social cohesion animating Justice Kennedy’s return to Bakke and traces the evolution of those concerns since Bakke. While Bakke’s concern for social cohesion focused on resentment among whites likely to arise from any use of racial preferences, Fisher is not limited in this way. Part IV concludes that universities interested in enrolling a diverse student body would do well to read Justice Powell’s opinion in Bakke, reconsider the use of critical mass to justify race-based affirmative action, and recognize how concerns of social cohesion shape the form of constitutionally permissible affirmative action.

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times—to no one’s surprise. References in Obergefell  to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey.  In Casey, “dignity” expressed respect for a woman’s freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas,  which similarly respected the freedom of choice of homosexual persons. Yet, starting in United States v. Windsor  and continuing in Obergefell, the narrative began to change. Dignity veered away from respect for the freedom to make personal and intimate choices without interference. Tracing the usage of dignity in these cases reveals that the “dignity” of Obergefell is not the “dignity” of Casey.

This Essay demonstrates how Obergefell shifts dignity’s focus from respect for the freedom to choose toward the respectability of choices and choice makers. Obergefell’s dignity is respectable in three ways. It depends on same-sex couples (1) choosing the heterosexual norm of marriage; (2) being and showing themselves to be worthy of marriage; and (3) being socially acceptable and accepted. As importantly, I show that Obergefell’s reasoning inflicts its own dignitary harms. It affirms the dignity of married relationships, while dismissing the dignitary and material harms suffered by unmarried families. It demands that same-sex couples demonstrate the same love and commitment that are taken for granted in the case of heterosexual couples. And, it implies that legal protection of dignity depends on the prior social acceptance of gay persons and relationships. Put together, Obergefell disregards the idea that different forms of loving and commitment might be entitled to equal dignity and respect.

Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.

This Article proposes a new theoretical framework to understand public recognition of gay people and relationships. This framework — called “respectable queerness” — suggests that public recognition of gay people and relationships is contingent upon their acquiring a respectable social identity that is actually constituted by public performances of respectability and by privately queer practices. The challenges posed by such recognition include dissonance between one’s public and private selves and fueling moralism and entrenching divisions between different queer constituencies.

For years, the United States government has endorsed transitional justice approaches abroad while ignoring the need for transitional justice at home. Recently, racial justice uprisings have shifted U.S.-based discussions of transitional justice, from gazing outward toward the international community to attending to the legacies of slavery, segregation, and white supremacy at home. This chapter demonstrates that the centuries-long oppression of Black Americans is precisely the kind of massive human rights violation that necessitates a systematic transitional justice response. Using historical, legal, and comparative analyses, it reveals that the United States has employed its own versions of transitional justice mechanisms and debates without recognizing them as such. The author argues that Americans should not uncritically adopt transitional approaches from elsewhere, but that they should reckon with systemic racism, recognize that the United States still has much to learn in this respect, and consider how transitional justice could be implemented in the American context.

Over the past decade, development actors have directed their attention to the lives of people who are marginalized based on their sexual orientations, gender identities/expressions and/or sex characteristics, often under the rubric of “LGBTI” (lesbian, gay, bisexual, transgender, intersex) issues. “Global LGBTI human rights” have emerged as a subject of development, with agencies, coalitions, and experts dedicated to their realization. This chapter introduces the academic literature and current programming on, as well as some of the ethical concerns that arise in, LGBTI international development. It traces and critiques the widespread and at times uncritical adoption of LGBTI and similar constructions in development efforts, as well as the framing of LGBTI issues in “global” or “universal” terms. It examines how development actors are faced with the choice between more or less visible ways of taking up LGBTI issues, and some perils of seeking visibility for the sake of visibility. The conclusion seeks to bridge existing ethical principles and LGBTI development.

In Sri Lanka, ideas about the way men and women should look and act are deeply entrenched. Transgender people and others who challenge gender norms—including many lesbian, gay, bisexual, and intersex people—face a range of abuses from state officials and private individuals that compromise the quality and safety of their daily lives, and their ability to access services that are central to realizing basic human rights.

Based on interviews with 61 lesbian, gay, bisexual, transgender, and intersex (LGBTI) people in four Sri Lankan cities, “All Five Fingers Are Not the Same” examines abuses against transgender people and others who do not conform to social expectations of gender and sexuality. Transgender people experience arbitrary detention, police mistreatment, and discrimination accessing health care, employment, and housing. These violations take place in a legal landscape that fails to recognize the gender identity of transgender people without abusive requirements and makes same-sex relations between consenting adults a criminal offense.

As the government implements security sector reform and adopts a new constitution, it should take steps to protect the human rights of LGBTI people. Sri Lanka should recognize all citizens according to the gender with which they identify and issue documents that reflect that gender, without requiring medical diagnosis or treatment. And it should eliminate laws and practices that discriminate on the basis of gender identity and sexual orientation so LGBTI people can live free of abuse.

State courts handle the vast majority of the country’s cases, yet little is known about the backgrounds of judges who sit on them. Much of the information about who seeks and gets judicial seats is not publicly available and, in many states, is not even collected in a systematic way. This report by Lambda Legal and the American Constitution Society for Law and Policy maps out how states can collect and release “judicial diversity data”—data about the demographic and professional backgrounds of state judges and judicial candidates.

Martin Luther King Jr. Day has special meaning this year, not only because it comes just months after the largest racial justice protests in U.S. history, but also because politicians and pundits who spent last year condemning those protests will now express reverence for Dr. King.

As historian Jeanne Theoharis writes, some Americans invoke King to hold up “the civil rights movement as the ‘right’ way to do [activism] and Black Lives Matter as the ‘wrong’ way.” Some of them interpret chants of “no justice, no peace” in the Black Lives Matter protests as violent departures from King’s legacy. Yet, that kind of contrast does not bear out in reality.

King may not have uttered the phrase “no justice, no peace,” which emerged as a rallying cry for racial justice decades after his assassination. Yet, he believed in the meaning of those words in his lifetime.

Those looking to implement traditional transitional justice measures in the United States must first understand the country’s leading transitional measure over the past half-century–affirmative action, explains Yuvraj Joshi. For more than 50 years it has been crucial to fight racial inequality.

From a transitional justice viewpoint, racial justice protesters today are not demanding discrete remedies for discrete harms. Instead, they are calling for a comprehensive and coordinated transition process that addresses the United States’ traumatic history with racism, its enduring legacy, and future threat.

A federal judge has upheld Harvard College’s admissions program against a challenge from Edward Blum. Her opinion reinforces what I interpret to be the true purpose of affirmative action in the U.S., which is the pursuit of racial transition.

Conservatives hope, and liberals fear, that a right-wing Supreme Court bolstered by a pair of Trump nominees will soon issue a decision spelling the end to affirmative action. But examining the legal history of affirmative action tells a different story. Even if a stable conservative majority uses SFFA v. Harvard as a platform to dismantle admissions programs that explicitly take race into account, affirmative action will not disappear. It will, though, be driven underground—with ever-less overt uses of race.

The lawsuit over Harvard College’s affirmative action program has been called a ‘battle of economists.’  The economist for Students for Fair Admissions (SFFA), an anti-affirmative-action organization, argues that Harvard’s admissions practices have “disproportionately negative effect on Asian Americans” compared to white applicants.  The economist for Harvard disputes SFFA’s selective reliance on available data and points out that the percentage of Asian Americans admitted has increased by 29 percent in the last 10 years.

Although squabbling over statistics has become routine in affirmative action cases, it acquires new significance with a deeply divided Supreme Court.

Edward Blum’s latest attempt to end affirmative action goes to trial this week. Blum, a non-lawyer responsible for orchestrating multiple anti-affirmative action lawsuits, is the president of Students for Fair Admission, an organization with the mission, he told The Washington Post, "to eliminate the use of race and ethnicity in college admissions." His goal is to shift the way America views affirmative action, from a practice that benefits racial minorities to one that harms them. His means: Asian Americans.

While much has been and will be said about Justice Neil Gorsuch’s deeply conservative jurisprudence on this week’s anniversary of his confirmation to the Supreme Court, the biggest impact of his elevation to the court is not actually seen in his early judicial leanings. Rather, it’s in the already hugely consequential legacy of his nomination fight.

India’s Supreme Court ruled that people have a fundamental right to privacy, curtailing the Indian government’s efforts to implement the world’s biggest biometric database. But the court also recognized, for the first time, that sexual orientation is an essential part of privacy and dignity, paving the way for LGBT equality in India and beyond.

Sri Lanka has been pursuing constitutional reforms since President Maithripala Sirisena came to power in 2015. LGBT activists hope the process will yield legal protections that could curb abuses ranging from police harassment to job discrimination. While the island nation has been praised for a progressive policy on gender recognition for transgender people, same-sex sexual acts between consenting adults are still criminalized. In an email interview, Yuvraj Joshi, a law fellow with Lambda Legal who documented abuses against LGBTI people in Sri Lanka for Human Rights Watch in 2015 and 2016, describes recent gains made by activists and how the government has positioned itself on LGBT issues.

President Obama has made significant strides in expanding the diversity of the nation’s highest courts. For the first time, a majority of Circuit judges are minorities and women. This diversity should be celebrated because it may yield judges like Justice Marshall. The Constitution needs them.

Yuvraj Joshi’s paper joins the critical research about the potential harms arising from the campaign for same-sex marriage and its realization for those who wouldn’t walk down the aisle even if they could. But it also enriches legal scholarship by exploring the psychological effects of same-sex marriage for those who marry.