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Bakke as Pseudo-Tragedy, 28 Catholic University Law Review 427 (1979)


On June 28, 1978, the Supreme Court of the United States decided Regents of the University of California v. Bakke. One could almost say that the case had been the focus of national attention before it even arose. The issues involved had been debated in hypothetical terms for years. Cases raising analogous issues, such as De Funis v. Odegaard, had come up and had been sidestepped. Finally, as Bakke itself made its way up to the Court and excitement grew, national attention became riveted on the seemingly fundamental value conflicts involved, and a solution, a catharsis, was widely awaited.

If a clear solution, a ranking of the underlying values at stake, was sought, then the Supreme Court's decision was totally disappointing. In a deep sense it settled nothing. And yet the desired catharsis did occur, and even before it was certain that this would be the case, the decision was hailed by scholars and journalists as "Solomonic" and a high example of "judicial statesmanship." In this lecture, I would like to explore why this was the reaction to the anticlimax of Bakke, why in some instances Court decisions like Bakke and the subsequent approbation it received are highly desirable, and why I, instead, think that both the decision in Bakke and its wide acceptance were on the whole misguided.

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