Today I served as a guest judge giving feedback for several teams of public high school students in a competitive program in which the students make arguments about topics in constitutional law. One of the teams argued that the Supreme Court should sometimes depart from the original meaning of a constitutional provision in light of the modern world’s changed ideas and conditions.
Their example of a case in which the Court properly
departed from an original meaning in this way was SFFA v. Harvard/UNC. The
students conceded that an originalist reading of the Fourteenth Amendment would
permit affirmative action on behalf of a disadvantaged racial minority group
but argued that the Court was correct to rule affirmative action
unconstitutional today.