A Beacon of Hope: Affirmative Action and Bakke’s Judicial Road to Fairness
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Abstract: According to Gerald Rosenberg, there are two main ways to view the American Supreme Court. There is the Dynamic Court theory which views the Court as a powerfull vehicle capable of succesfully proposing social change, and there is the Constrained Court paradigm, which maintains that the Court is a severely constrained majoritarian institution and that its decisions reflect popular preferences. Since the 1990s, the Constrained Court paradigm has become the dominant theory on the power of the Supreme Court. However, this study explains how the Constrained Court view falls short of explaining the social change that followed Bakke, which is a landmark court case that dealt with the issue of affimative action. After exploring the context of this case, and after an examination of the most important court theories this study eventually concludes that, just like so many systematical approaches in academic disciplines, the Constrained Court theory has become too dominant and should be revised, as this study indicates that the Supreme Court can in fact, in some specific cases, lead public opinion to a new agreement on an issue and subsequently produce social change.