Harvard & UNC affirmative action cases to be argued on Oct 31

[David Hume]

As per court orders on July 22, 2022,

https://www.supremecourt.gov/qp/21-00707qp.pdf
https://www.supremecourt.gov/qp/20-01199qp.pdf

The two cases are no longer consolidated. Both of them will be argued on Oct 31, 2022.


There could be an interesting situation. If there is another vacancy on the conservative side, and another conservative justice recuses on the other case (say Kavanaugh or Gursuch was a board member of UNC), meaning each case would be decided seven justices.

For the Harvard case, by a 4-3 vote, SCOTUS may overrule Grutter and declare affirmative action unconstitutional racial discrimination, and racial diversity of student body not a compelling state interest to justify that. (Assume only one conservative defection). Yet in the UNC case, with Jackson's vote, the vote is  4-3 to reaffirm Grutter. What happens?

[David Hume]

No point in imagining such scenarios. Jackson will be the only recusal, in Harvard, which has already been clear for months. Affirmative action in college admissions will certainly finally be overturned, very likely in 6-2 and 6-3 votes.

The remaining question, I think, is how far it will sweep—whether this ends up just being a decision about college admissions, or whether it will extend to race-based hiring and contracting as well.

The court order made it clear

"Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold
that institutions of higher education cannot use race as a factor in admissions?"

the scope is limited to higher education only. Other levels of education will likely be addressed in the Virginia high school case. Hiring would need other cases as well, which likely would arrive soon.

[David Hume]

Affirmative action will lose because Harvard is guilty. Conservatives will cheer at first because there will be fewer black and hispanic students at their beloved Harvard, but before long they will recoil in horror as the student body's at America's most elite private schools begin to resemble that of UCLA.

If so, they are not true conservatives. Conservatives value individual liberties and equal opportunity, and are against identity politics of all sorts.

Are you upset that NBA's racial composition resembles Africa?

[David Hume]

No point in imagining such scenarios. Jackson will be the only recusal, in Harvard, which has already been clear for months. Affirmative action in college admissions will certainly finally be overturned, very likely in 6-2 and 6-3 votes.

The remaining question, I think, is how far it will sweep—whether this ends up just being a decision about college admissions, or whether it will extend to race-based hiring and contracting as well.

The court order made it clear

"Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold
that institutions of higher education cannot use race as a factor in admissions?"

the scope is limited to higher education only. Other levels of education will likely be addressed in the Virginia high school case. Hiring would need other cases as well, which likely would arrive soon.

I'm aware of the mechanics. But there are a lot of ways to write an opinion overruling Grutter, some of which would discourage challenges to other systems of racial preferences. If the Court says, for example, "the use of racial preferences is statistically no longer be necessary to further the interest at stake in Grutter," that would dampen litigation applying the case to other situations, because it would allow judges a way to distinguish the ruling ("your district is less integrated than the avg university, so racial preferences are still okay here"). By contrast, if the Court says "affirmative action in university admissions is unconstitutional because the Equal Protection Clause prohibits all forms of racial preferences everywhere all the time, please file cases overturning those" it would have sweeping effects very quickly.

I don't disagree with what you said, however, cases challenging affirmative action will always be filed with ample numbers, even with a less supportive court. IIRC the case for VA high school was already accepted.

For these two cases, since Roberts is very firm against any racial preferences, and affirmative action is not popular so ending them won't harm the court's image, I expect a sweeping ruling.

[David Hume]

If so, they are not true conservatives. Conservatives value individual liberties and equal opportunity, and are against identity politics of all sorts.

Are you upset that NBA's racial composition resembles Africa?

This has more to do with America's cultural particulars than with the dictionary definition of conservatism per se, though.

In fact, Classical Liberals/Libertarians fit this description as well. Only Social Liberals don't.

[David Hume]

I swear if SCOTUS rules the other way on the only issue I agree with them on I'll be mad.

The only way I can see that happening is if John Roberts decides that Sandra Day O'Connor's timeline has to be respected (which is kind of silly and arbitrary but still a very John Roberts-esque thing to do) and he can get one other conservative on his side too (very unlikely but Kavanaugh and ACB would be most likely, Kavanaugh because he's most likely to flip with him and ACB because she might be a bit more woke on racial issues than the other conservatives.)

However if a case came up after O'Connor's timeline expired than Roberts would be a definite vote to overturn.

The O‘Connor 25 years is a dicta, which is not legally binding.