Justice Kagan: Affirmative Action Suggests that Beneficiaries Could Not be Accepted Based on Merit Alone

OK, she said it in 2006 as a dean, not a Justice, and about women and law review membership at Harvard, not SFFA and minority admissions, but I would be interested in knowing why she has expressed this concern about women, but not URMs.

Relatedly, my former colleague (now DC Circuit judge) Neomi Rao once presented a talk noting a perceived anomaly in Justice Ruth Bader Ginsburg's jurisprudence. Ginsburg insisted on strict, formal legal equality for men and women, even when favoritism would benefit women. She did not apply the same reasoning when it came to race. Ginsburg, when asked about how she reconciles the two positions, acknowledged that she had never thought about it. I wonder if Kagan has.