Does a Footnote in Sackett II Indicate How SCOTUS Will Resolve the Affirmative Action Cases?

Could the Court treat Justice Powell's Bakke opinion the way it treated Justice Kennedy's Rapanos opinion?

In Sackett v. United States (Sackett II), the Supreme Court narrowed the scope of federal jurisdiction under the Clean Water Act. In doing so, Justice Alito's opinion for the Court adopted the interpretation of the CWA articulated in Justice Scalia's four-justice plurality from Rapanos v. United States, and rejected the "significant nexus" test articulated in Justice Kennedy's concurrence. This was significant because, for over fifteen years, the federal government, and most lower-courts, had embraced Justice Kennedy's opinion as the controlling opinion. As the 1 in the Court's 4-1-4 split, Justice Kennedy's opinion was understood as embodying the narrowest grounds under Marks v. United States.

While most viewed Justice Kennedy's opinion as articulating the outer bounds of federal regulatory jurisdiction under Rapanos, that was not how the case was presented to the Court, and none of the justices viewed that opinion as a controlling precedent. Wrote Justice Alito in footnote 3 of his opinion for the Court: "Neither party contends that any opinion in Rapanos controls. We agree."

While Justices Kavanaugh and Kagan disagreed strongly with Justice Alito's embrace of the Scalia plurality, neither contended that the Court was obligated to follow the Kennedy concurrence under principles of stare decisis. They objected to the substance of the Alito majority, not its treatment of Justice Kennedy's Rapanos opinion.

What does any of this have to do with affirmative action? Recall that one of the key affirmative action precedents is Regents of the University of California v. Bakke. This decision, like Rapanos, was a 4-1-4 decision. And just as Sackett II called upon the Court to revisit the question at issue in Rapanos, this term's two affirmative action cases call upon the Court to revisit whether the consideration of race in university admissions is unlawful, either under the Constitution or federal statute.

Subsequent decisions have often treated Justice Powell's Bakke concurrence -- the 1 in the 4-1-4 split -- as controlling, particularly on the question of whether the Equal Protection Clause of the Fourteenth Amendment prohibits race-conscious admissions policies. But there was another issue in the Bakke case: How to interpret the Civil RIghts Act. As with the question in Rapanos and Sackett II, this is a question of statutory interpretation, where concerns for adherence to precedent are typically at their height. Yet in Sackett II no justice claimed that rejecting Justice Kennedy's interpretation of the CWA in favor of the Justice Scalia plurality offended stare decisis principles.

If rejecting Justice Kennedy's Rapanos concurrence did not offend principles of stare decisis, would not the same apply to Justice Powell's Bakke opinion? Might this give room for the Court to revisit the  question of whether federal law bars the use of race in university admissions and to embrace the four-justice plurality from Bakke that concluded race conscious admissions violate the Civil Rights Act? Might this provide a way for the Court to revise the common understanding of what federal law allows without offending statutory stare decisis? We should soon see.

Comments

[Religion and Politics, my life]

You lost me...this is stare decisis about state decisis. Let the lawyers argue. 🙂

[Jett's Pop]

The Supreme Court adopted Justice Powell's conclusions -- including the conclusion that Title VI only prohibits those forms of race-consciousness that states are prohibited from by the Fourteenth Amendment -- in Grutter. So it's really not a good analogy. They would have to overrule an unambiguous precedent by a Court majority to hold that Title VI goes beyond the proscriptions of the 14th Am.

[Rev. Arthur L. Kirkland]

I expect conservatives to continue to exercise the power associated with a Supreme Court majority -- so long as they can keep it.

In a nation that becomes less religious, less rural, less backward, less bigoted, and more diverse every day, how long can that be?

[Icepilot]

"less rural, less backward, less bigoted" - so we're finding the future & classic liberal values in urban areas? Right. Because thieves chasing major retailers out of zombie downtowns is so forward thinking?
Rural America is considerably less backward or bigoted than the South side of Chicago. I can walk down any street in my rural town any time, day or nite, w/o the slightest concern regarding my safety. You can't.

[Rev. Arthur L. Kirkland]

One side has rural communities, fourth-tier religious schools, shambling economies, uneducated residents, shambling health care, country music, and faith healers.

The other side has educated, modern communities; our strongest (reason-based) teaching and research institutions; top-flight health care; a skilled, educated, diverse workforce; our leading cultural and newsgathering institutions; and a preference for reason, inclusiveness, education, modernity, progress, and science.

The sifting is predictable and is destined to continue along the trajectory America has observed -- and benefited from -- for more than a half-century.

[Icepilot]

Well, folks can believe you or their lying eyes. But zombie downtowns & 53 shootings a weekend in Chicago are hard to ignore, no matter how hard you wave your hands. Also, you're just wrong wrt where people are moving. https://www.bloomberg.com/graphics/2021-citylab-how-americans-moved/

[Stephen Lathrop]

Sackett II was decided in a way that anyone familiar with the CWA's origin and enforcement history could only find baffling. First, of course, was the determination to let a contrived sort of textualism (if that is what it was) decide the entire case, against the unmistakable will of Congress when it passed the initial CWA, then when it later reinforced its meaning in 1977.

There was no ambiguity in the law's language when the Sacketts decided to break it, and make themselves a test case. No administration since 1977 had found any ambiguity, or objected, or mentioned confusion. There had been regulatory adjustments along the way, to accommodate objections by regulated parties, and to ease burdens they claimed to suffer. Indeed, there had been a streamlined procedure added to help regulated parties. Those who, like the Sacketts, needed small exceptions were given a means to get what they wanted with minimal cost and delay.

That procedure was working, and had been used repeatedly by other parties who lived in the vicinity of the Sackett case. There is no reason in the record to suppose the Sacketts themselves could not have been similarly accommodated at trivial expense, and with delays amounting to no more than weeks or a few months. When told by EPA officials of the availability of that procedure, and invited to apply, the Sacketts spurned the offer. They seemed to want the legal dispute more than they wanted to develop their patch of bog.

Notably, there was nothing in the case to suggest the CWA's regulation of wetlands filling was inherently outside the constitutional power of Congress. The decision as written does not seem to claim otherwise. It seems as if the decision was written solely to award a victory to development interests at a time when for political reasons congressional power to overturn the decision with new legislation would prove unavailing.

So why did 4 justices in the minority, who seemed to understand that the purpose of the law was constitutional, and to understand that the law was not ambiguously worded, and to understand that the Sackett's had flagrantly violated the law as it then was, vote to join in the decision, while dissenting on the reasoning—as if to show they knew they were casting peculiar votes to do it?

I can only speculate. I think the 4 justices who wrote against the reasoning, but voted for the decision, may themselves be unfamiliar with the natural subject matter the CWA regulates. They may have estimated their own experience would equip them poorly to understand what the law says, and what would be required of them to comply with it. They may not have understood how different their own experience is from that typically possessed by the sorts of people who make decisions about managing or developing wetlands, public or private.

And that, I think, turned out to be an undefended point in the perimeter, through which Alito and his ideologically driven majority drove their decision. They were intent on turning back the clock on wetlands development for reasons at once partisan, ideological, and economic—which is to say, they intended policy changes to overturn Congress—and thanks to a minority uncertain of itself about the natural science subject matter, they garnered 4 inappropriate votes to make their illegitimate decision look unanimous.

If there are any here who think otherwise, I would welcome quotations from any of the various decisions which illustrate a basis for that disagreement.

[MaddogEngineer]

So, you don’t realize the EPA’s interpretation of statutory wetlands as it applied to the Sackett property lost 9-0?

They didn’t ignore the purpose of the CWA. They all agreed the alleged wetlands in questions didn’t qualify as covered by the Act. So no, the Sacketts didn’t flagrantly violate the law. They stood up to government agency overreach.

I really don’t want to live in a world where government (and judges) get to decide what the “spirit” of law allows. That’s the opposite of the rule of law.

[Stephen Lathrop]

maddogengineer — the quotations from decisions I mentioned—where are they? Any citations at all to the, "spirit," of the law? That word from you asserts an ambiguity which was no part of this case.

In fact, the CWA was passed to prevent filling wetlands for real estate development purposes. That was the principal political impetus behind the CWA when it was initially passed. In the prolonged and very extensive public debates which attended passage, no other issue was so prominently featured. The law was modified in 1977 to reinforce that purpose specifically. As reinforced, that law has governed wetlands filling ever since—very much to the public benefit of the nation.

What did the Sacketts do? They filled an unambiguous wetland to develop real estate. They flagrantly broke the law as it existed when they did it. Because they also spurned an invitation to receive a permit as a permissible exception, the only reasonable interpretation of their conduct is that they broke the law to give the court a case to overturn the law. The backing the Sacketts received along the way from real estate development allies reinforces that interpretation.

Uncertainty was not a factor in the Sackett case, where unambiguous wetlands got filled. The Sackett fill project took place adjacent to Priest Lake—adjacent by provable standards which existed and were long-enforced nationwide before the occasion when the Sacketts broke the law. Among other evidence of adjacency which the Alito faction ignored, appendices from the case showed 14-inch trout from Priest Lake spawning in the bog upstream from the Sackett property—which is to say with the Sackett property between the spawning area and the lake.

To get to where they spawned, trout bypassed the Sackett property only because previous filling had obstructed access specifically to the Sackett property, and introduced a new man-made channel as an alternative to accommodate drainage which had previously run right through the Sackett property, and from there directly into the lake. The law prior to this case had been that such man-made modifications in adjacent waters did not suspend regulation of waters to which the obstructions excluded direct surface access.

That change in the law, created anew by this case, and not by congress, will approximately halve the nationwide acreage of waters protected by the CWA. That change will predictably renew mass exploitation of wetlands filling as a real estate development strategy. It will return the nation to the crisis which the original passage of the CWA had stanched successfully, by use of legitimate powers of Congress which the Sackett decision did not even bother to challenge. Instead, the Sackett decision just bypassed that congressional power by evidence-free textual reinterpretation.

As the decision reads now, the whole point of the case was to bypass the law without ever considering the merits of the case as a legitimate means to protect natural assets of the United States. What the decision required to accomplish that was only to reinterpret a few key words, doing it in open defiance of legal standards for what those words had always meant previously in Congress, in the policies of every intervening administration, and in the courts.

If you disagree, show me quotes from the decisions in this case to prove otherwise. Otherwise, please stop offering baseless misinterpretations.

[MaddogEngineer]

You seem like an unbalanced person.

[David Nieporent]

There was no ambiguity in the law’s language when the Sacketts decided to break it,

Once again: all nine justices agree that the Sacketts did nothing of the kind.

[Stephen Lathrop]

Once again, you are full of beans. Not one justice found any ambiguity in the law. It was the lack of ambiguity which the Alito faction hated. They decided to gut the law, by fiat, by pretense, and by policy imposition of a completely made-up continuous surface standard the law had never required.

[MaddogEngineer]

So…you haven’t read any of the opinions of the Court on this case? Because if you had, and comprehended them, you wouldn’t have written what you did.

Not all of the justices agreed with Alito’s majority decision reasoning. None of the justices agreed with you, that the Sacketts land ever qualified as wetlands under the Act, or that they knowingly violated the Act when they backfilled it. That’s the heart of this dispute: the regulatory unreasonableness of the uncertainty whether an undeveloped property could be classified as a wetland under the Act.

There is no law gutting. Land adjacent to a body of water remains covered as wetlands under the Act. It’s only unconnected land that clearly is not. The reasons for that are still not settled law, as the concurrences described.

[Stephen Lathrop]

MaddogEngineer — Provide quotes from the decisions, or you are just an ideological hack like Alito.

I will give you a hint. Ambiguity has been alleged by some because right wingers demanded a fact-free case outcome based on playing games with language. But use of case-by-case natural criteria is not only reasonable, it is also the most narrowly tailored method possible to fulfill the CWA's mandate.

Any attempt to use Alito's method in good faith would have to sweep much more broadly. But Alito is not in good faith. He does not intend the CWA's mandate to be fulfilled, he intends to substitute a different policy mandate of his own. So he demands an unworkable standard for the CWA, to make it fail. Perhaps that is your preference too.

By the way, despite your absurd, "unconnected land," supposition, the Sackett property maintains a hydrologic connection, and an ecologic connection to the Kalispell Fen, and to Priest Lake—which are acknowledged as properly regulated waters. Evidence from the case record proved that, but went unmentioned in Alito's decision. In point of fact, historically, geologically, and hydrologically they are not even separate waters. They are the same body of water, mapped that way decades ago by the U.S. Geologic Survey. An illusion of separation was created later, by man-made barriers constructed within that formerly continuous body of water. Even those barriers did not sever material hydrologic connections, or ecological connections.

Although unmentioned by the Alito decision, evidence to prove those points exists in the record of the Sackett case. Some of that evidence was alluded to by Kavanaugh and Kagan, although they also overlooked too much.

Finally, construction of barriers like those around the Sackett plot was not previous to this decision by Alito treated as severing a legal connection for CWA purposes. Until this Sackett case, Priest Lake, the Sackett property, and Kalispell Fen were all one body of water, in nature, and in law. Because of that fact, the entire subject of determining the proper extent of CWA jurisdiction was a strained and illegitimate imposition on the Sackett case—but for that very reason, it was an imposition shrewdly chosen to get a maximally destructive result for U.S. water management policy.

[MaddogEngineer]

I can see why someone who believes as you do would be troubled by Alito's majority/controlling opinion for the Court. However, once again, ALL OF THE DISSENTS ALSO SIDED WITH THE SACKETTS but for differing reasons. None of the justices agreed enough to document in dissent the EPA had any authority to regulate as wetlands any portion of the Sacketts property.

The absurd, "unconnected land" supposition is not mine. I never said any such thing. All I've said is ALL OF THE DISSENTS ALSO SIDED WITH THE SACKETTS. Which is why I question whether, in your hyper-emotional state, you bothered to read the opinions. I have not commented on the merits of the decision, or even the dissents.

Your repeated assertion the Sacketts broke the law is only your supposition, because you are assuming your own conclusions about the scope of federal jurisdiction and your preferred regulatory scheme. There's a reason why the Supreme Court in Gibbons v Ogden (1824) made reference to "navigable waters". Obviously unreasonable people may disagree.

[David Nieporent]

Once again, you are full of beans. Not one justice found any ambiguity in the law. It was the lack of ambiguity which the Alito faction hated. They decided to gut the law, by fiat, by pretense, and by policy imposition of a completely made-up continuous surface standard the law had never required.

All. Nine. Justices. Agreed. That. The. Sacketts'. Property. Was. Not. Covered. By. the. CWA.

That is entirely separate from the issue upon which Alito and the concurrences disagreed.

[ReaderY]

Stephen Lathrop focuses on what regulators thought. But the EPA statute itself explicitly acknowledges that the Constitution gives Congress no general power to set environmental policy for the country. Its power here derives solely from its enumerated power to regulate navigable waters.

There’s a reason statutory and constitutional constraints on administrators are a thing. The Court was right to ask what the statute says, not what you or the EPA or scientists think good policy.

It simply doesn’t matter whether EPA administrators thought that it would be good policy to regulate anything that might be considered a wetland, or what their scientific, environmental, or climate change reasons might be for doing so. Nor does it matter if they granted exceptions. Like interstate commerce, navigable waters may have a penumbra. But it doesn’t have a penumbra of a penumbra. There still has to be a direct connection to navigable waters for Congress to have the power to regulate.

The Sackett’s property didn’t have such a connection, even by the minority’s somewhat broader definition.

Look, the Eugenics Society was run by scientists. Eugenics was a scientific program, touted by scientists as the scientific way. Leave it to the experts in the Eugenics Society and three generations of imbeciles is enough. Who are judges, who are legislators, to interfere?

[Bored Lawyer]

These kind of posts remind me of Kremlinology, back when the Soviet Union was around. Or like reading chicken entrails. Why don't we just wait for the opinion to come out and see?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Same reason people play fantasy football. Once I recognized Josh Blackman's posts as the equivalent, they made a lot more sense and are a lot more fun.

[David Nieporent]

I mean, he actually runs a fantasy SCOTUS league!

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I did not know that, or at least I don't remember knowing that -- dang, that's funny.

[not guilty]

Why would anyone think that the current SCOTUS cares one whit about whether a prior opinion is or is not precedential? Thirty-two years ago Justice Thurgood Marshall wrote that ¨Power, not reason, is the new currency of this Court's decisionmaking.¨ Payne v. Tennessee, 501 U.S. 808, 844 (1991) (Marshall, J., dissenting). While these words were written in dissent, five members of the current Court seem to regard them as an inexorable command.

[DRM]

The irony of Justice Thurgood Marshall making that claim, in the course of his long efforts to use the power of his seat on the Court to abolish the death penalty regardless of law and precedent, is so immense you could build a ten-times-scale replica of the Eiffel Tower with it.

[Stephen Lathrop]

The Eiffel Tower isn made out of irony?

[The Turtle Dove]

Perhaps it would have been different if the waters in Rapanos had been held to be within the Act. The plurality traced a broad justification for the order of the court, and the concurrence (rejecting the plurality’s logic completely) traced a qualitatively different rationale that, in an empirical sense, made the waters of the plurality’s holding a discrete subset of the objects that the concurrence would have encompassed.

But the law of precedent is about reasons, not the empirical effects of those reasons. Again, though, it might have been different if the waters had been within the act, because you could then reason backwards from that empirical inclusion, and say: “Well, if this one is in scope, I can make an argument that X is/isn’t in scope.”

But the order of the court was that the drainage ditches were outside the act, and the null-set myriads of reasons why something might be outside the scope of a certain regulation might keep us from similarly reasoning backwards from the empirical effect of a judgment.

(Caveat, this case hasn’t come to mind since JD studies, with occasional reminders in the form of annoying lettering on coffee mugs. So I might be a bit off-base.)

Mr. D.

Edited to fix a dumb mistake.

[Patrick Trombly]

How does discriminating between two people born in 2005 “remedy” any past event in which neither was a party?

How does admitting a student into a more rigorous program than the program he would otherwise have entered “remedy” anything?

How underqualified can he be and still hope to catch up?

How do people not see the “domino plus one” effect at play? Harvard diversifies by taking students who belong at Bowdoin. Bowdoin then has to take students who belong at BU just to backfill- which means they have to reach further down to diversify THEIR student population. How far can you take this before you can’t close the gap without remedial classes, pass-fail, victimology studies…? Does anyone fail to connect diverging graduation rates and graduate school exam passage rates to diverging admissions thresholds?

Is real diversity being achieved? Or are you just creating a second class of students, and later, of recruits, who can't actually complete the work at the level to which they have been elevated? How does that help anyone?

Is a degree from an elite school a ticket to a high paying job? Or is it a label that says this candidate has the capacity to perform a challenging job? Does it matter whether he actually can? How can he if the label says Bowdoin but it would have said U Maine if he had been from a different demographic group? Do you think that recruiters don’t discount the degree?

This is a program that, taken beyond a very limited application, is a farce.

And it has real victims- mostly Asian and South Asian students who end up at schools 1-2 levels below THEIR capacity. This and the anti-SHSAT movement will turn Queens red.