The Volokh Conspiracy

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Supreme Court

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.