The U.S. Supreme Court's 2013 decision on affirmative action in university admissions, Fisher v. University of Texas, surprised many by not outlawing such measures. There seem to be five Justices on the Court opposed to affirmative action. As a result, the Court's 1978 decision in Regents of the University of California v. Bakke, permitting some affirmative action, remains important. This essay poses the question of whether Bakke's impressive durability , and the reliance of numerous social institutions on the case, makes Justice Powell's Bakke opinion a "super-precedent," even though no other Justice actually joined the opinion.
This "super-precedent" terminology was used during Chief Justice Roberts's confirmation hearings in discussing iconic cases like Marbury, Brown, Griswold, and even Roe v. Wade. This essay argues that Bakke fits most definitions of a super-precedent, but the essay also explains that this label matters less in the affirmative action context given other recent Supreme Court developments, such as the forthcoming decision in Schuette v. Coalition to Defend Affirmative Action.