The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

SCOTUS Punts the Harvard Affirmative Action Case To The Acting SG

If the SG drags her feet, she can postpone oral arguments until the October 2022 term


On Monday, the Court requested the views of the Acting Solicitor General in Students for Fair Admissions v. Harvard. This case challenges the University's affirmative action policy. Had the Court granted the case this month, it likely would have been argued in November or December 2021. But now, it is impossible for the case to be heard during the October 2021 term.

Now, the ball is in the SG's Court. She can sit on this request for an indeterminate about of time. There is no time frame in which she is required to reply. If the SG files a brief by the end of December, the Court could grant the case in January, and hear arguments in April. But if the SG files the brief in late January, a cert grant would not be timely enough for an April argument under the normal course. Instead, the case would be argued during the October 2022 term, with a decision by June 2023. In theory at least, the SG can control the fate of the decision. Who knows what the world will look like at that point.

Now the Roberts Court doesn't care what the Biden Administration thinks about affirmative action. We know the answer. This CVSG is a dilatory tactic from the Roberts Court. Here, the CVSG represents yet another form of a punt. (I wrote about 4 types of punts here). OT 2021 is already full with abortion and the Second Amendment. It would be too hectic to add affirmative action on top of that mess.

Does the Biden Administration tempt fate, and wait till January to file a brief? Acting SG Prelogar already burned some credibility with the Court over her dilatory filing in Terry. I do not think a dilatory CVSG brief in the Harvard case, designed to delay hearing the matter, would be well received. We know the Court can move quickly when it wants to. I suspect the brief will be filed, per custom, by December 2021.

By the way, we still do not have a Solicitor General nominee.