Will the Marks Rule Inter Two of Justice Kennedy's Decisions from OT 2015?

Fisher II had a four-member majority. And at least one court read June Medical as overruling WWH in part.

|The Volokh Conspiracy |

At the end of Blue June, I wrote that the Roberts Court was slowly interring Justice Kennedy's ephemeral "Jurisprudence of Doubt." Specifically, the Court buried Boumediene, Whole Woman's Health, and Trinity Lutheran Footnote 3.

Now, an Eighth Circuit panel has used the so-called Marks Rule to find that there were five votes in June Medical to overrule the cost/benefit framework from Whole Woman's Health. In effect, WWH overruled Casey in part, and June Medical restored the Casey framework. When abortion caselaw reaches the Supreme Court, the Chief could credibly argue that part of WWH is already overruled, and that Casey is the governing precedent–only burdens, and not benefits will be considered. That sort of holding would be so confusing that no one would really understood what happened. I don't envy newspaper headline writers: Roberts Court upholds Roe and Casey, but finds that June Medical already overruled Whole Woman's Health.

I think the Chief will pull a similar move on affirmative action. Fisher II was decided by a seven-member Court. Justice Kagan recused, and Justice Scalia passed away. The majority had only four votes. In the Barnett/Blackman casebook, we pose the question of what is the value of a four-member majority? Not much. Indeed, Fisher II effectively expanded upon Grutter. In a way, Fisher II overruled part of Grutter by watering down the strict scrutiny standard. Likewise, according to the Chief, WWH made a similar move, and overruled part of Casey by strengthening the standard of review. Arguably, Casey and Grutter without taking any further action to overrule precedent.

In July, I hinted at this future:

In short, the Chief's judicial humility requires standing by decisions that he thinks lack humility. But only some of those decisions. Roberts will stand by Planned Parenthood v. Casey, but will not stand by Whole Woman's Health. In the future, I suspect he will stand by Grutter v. Bollinger, but will not stand by Fisher v. University of Texas, Austin II. And so on.

And the Marks rule could help the Chief reach that conclusion. I am not sure where Justice Gorsuch would fall with this question. His Ramos opinion raised some difficult questions about stare decisis and the Marks rule. See my post from April.

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  1. There’s something very catholic about the tense, baroque machinations and intrigue being put in to reach a predetermined result that everyone already saw coming several years ago.

    But I’m sure the other soccer dads will all be shocked, so there’s that, I guess.

  2. Fisher II didn’t specifically change any doctrine (and the result was more or less the same as Grutter — that is, defer to the university). Basic v. Levinson was a 4-2 decision, and it held up pretty well. Fisher II may or may not last, but it won’t have anything to do with the fact that it was a 4-3 decision.

  3. As noted in the Grutter findings of fact at the trial court and as noted by Thomas in his dissent, the “critical mass” was a blatant & obvious quota. It took the CA6 de nova, to accept the UM pleadings at face value as if it were true to support the bakke standard.

  4. Why is the Chief let off the hook re: judicial humility? I’m not sure why anyone should give him the benefit of the doubt when he’s shown himself to be very willing to reverse precedent (some quite longstanding): Janus, Shelby County, Citizens United, Heller, and those are just a few, and don’t even touch on dissents He wrote or joined that would have overturned precedent if he had the votes.
    Isn’t it more reasonable to assume that he overturns precedent when he likes the result or feels it’s necessary to “protect the court,” and clings to state decisis when he likes the old rule or feels that a change would put the court in danger? (I assume that is the case with June Medical, but maybe he has shifted left on abortion. Wasn’t his wife involved in pro-life organizations back in the day, or am I misremembering something from his confirmation?)

  5. I’m being practical, not legal here:

    1: Is there a case that could go to SCOTUS in FY-2021? The First Circuit hasn’t ruled on SFFA’s appeal on the Harvard case yet, and their suits in TX & NC are at the trial level. There would also be a year delay between cert and hearing, hence I don’t see any SCOTUS ruling on Affirmative Retribution before June 2023 at the earliest.

    2: Notwithstanding the above, can you imagine a SCOTUS ruling ending (or even restricting) Affirmative Retribution in the current political (protest) environment?!? The radicals would burn the campi flat, if not the whole country.

    3: The thing being overlooked here is that the two groups that Affirmative Retribution most helps are White Women and Immigrants — while initially intended to help Black men, they really don’t benefit from it very much. Nationally, the female/male ration of Blacks in higher ed is at least 2:1 and getting worse.

    4: Back in her infamous 2002 ruling, Justice O’Connor said that Affirmative Retribution could end “in 25 years” — that would be 2027. Now if one wants to be loyal to precedent, “in 25 years” means “in 2027” and to what extent, if any, is that a mandate?

    5: What will higher ed even look like a year from now? Will it implode the way that the railroads did? And if so, will admissions decisions even be relevant anymore? A full fifth of Harvard’s freshmen are taking a year off, I can’t help but think it will be higher elsewhere…

    1. 3. The legal basis for affirmative action in higher ed post-Bakke is not ‘compensation’ (much less ‘retribution’) but this: the goal of these institutions is to prepare students for a diverse world and marketplace and having a diverse student body furthers that goal. So as to who it ‘helps’ the answer is: everyone, but *especially* non-underrepresented groups because it helps them get acquainted with the kind of diversity they are going to experience in the ‘real world.’

      4. Ginsburg and Breyer had a separate concurrence not signing on to the 25 year quote, so likely no ‘mandate.’

      5. Methinks this is wishful thinking on your part: lots of institutions outside of higher ed (businesses, churches, sports, etc.,) are experiencing dramatic challenges this year, do you see them ‘imploding’ too?

      1. “The legal basis for affirmative action in higher ed post-Bakke is not ‘compensation’ (much less ‘retribution’) but this: the goal of these institutions is to prepare students for a diverse world and marketplace and having a diverse student body furthers that goal. So as to who it ‘helps’ the answer is: everyone, but *especially* non-underrepresented groups because it helps them get acquainted with the kind of diversity they are going to experience in the ‘real world.’”

        So what you’re saying is that they are going to have to learn to be treated as second-class citizens because of the color of their skin.

        Why should they be expected to peacefully tolerate this any more than anyone else? Seriously — WHY?

        Forty years ago, there were two South African countries where the minority oppressed the majority by force of law — and change came to those countries. I’d argue that the change wasn’t exactly beneficial, but apartheid laws are no more….

        1. She gave the legal analysis. Switching over to ‘affirmative action is racism’ is not engaging with what she was posting.

  6. I don’t think Roberts’ opinion can fairly be read as overruling June Medical. Roberts said that he personally disagreed with June Medical, but was bound by Stare Decisis. That’s not a vote to overrule.

    One can interpret Roberts’ opinion as limiting the reach of June Medical and not extending it to completely new facts. But I don’t think it can be interpreted as overruling it.

    1. I think you mean “Whole Women’s Health” instead of “June Medical.” As for the merits of this article, I don’t think SCOTUS will sign on to the idea that it implicitly overrules precedent. In this case, the Eighth Circuit is saying that Chief Justice Roberts was voting to overrule Whole Women’s Health even though he said he wasn’t.

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