Abstract
In this Article, we introduce the concept of co-optive constitutionalism, a rhetorical mechanism through which the U.S. Supreme Court dismantles civil rights protections while paradoxically employing civil rights language to legitimize these regressive outcomes. Through a detailed analysis of the majority, concurrences, and dissents in Students for Fair Admissions v. Harvard, we demonstrate how the Court's conservative majority strategically appropriates progressive ideals, selectively quotes precedent, and redefines equality to justify overturning decades-long precedent permitting race-conscious admissions. We situate co-optive constitutionalism within the broader conservative legal political movement spearheaded by the Federalist Society, revealing how judicial rhetoric aligns with conservative political tactics to reshape American law. This analysis illuminates how the Court’s rhetorical strategies have already triggered a cascade of consequences beyond higher education, including challenges to DEI initiatives, military academy admissions, and corporate diversity programs. By identifying and naming this mechanism, we contribute to scholarly efforts to document and resist the Court's erosion of civil rights protections.
Recommended Citation
Raquel Muñiz and Andrés Castro Samayoa,
Co-optive Constitutionalism,
20
Nw. J. L. & Soc. Pol'y.
130
(2025).
https://scholarlycommons.law.northwestern.edu/njlsp/vol20/iss2/4
