The Volokh Conspiracy

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SG Files Brief in Harvard Affirmative Action Case, Teeing The Case For Review This Term

Guns, Abortion, and Affirmative Action in a single year. Why not?


In June, the Supreme Court CVSG'd Students for Fair Admission v. Harvard. At the time, I observed that the Court punted the case to the SG. Prelogar could have held onto the brief until March 2022. At that point, it would likely been too late to grant in the current term. But the SG filed the brief today. Now, the briefing is complete, and the case can be granted for the current term.

On the merits, the SG said review is not warranted, and the Court should not overrule Gruter.

Petitioner also contends (Pet. 21-36) that the Court should grant review to overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and the Court's other precedents authorizing consideration of race in university admis-sions. But petitioner cannot justify that extraordinary step. In the view of the United States, Grutter's inter-pretation of equal-protection principles is correct, and all traditional stare decisis factors—including the sub-stantial reliance interests of colleges and universities around the Nation—strongly support adhering to Grut-ter. In any event, this case would be a poor vehicle for reconsidering Grutter. 

Sounds familiar.

Will the Justices want to grant now? I mean, with guns and abortion on the docket, why not add affirmative action? And don't forget the emergency redistricting litigation that may trickle up before the midterms. This term will simply get more insane. If history is any guide, the Court relisted Dobbs umpteen times. A few relists would put this the Harvard case safely into next term.