The Volokh Conspiracy

Frank writes in the Wall Street Journal:

In a dissent from last week's ruling against racial preferences in college admissions, Justice Ketanji Brown Jackson enumerated purported benefits of "diversity" in education. "It saves lives," she asserts. "For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live."…

The study makes no such claims. It examines mortality rates in Florida newborns between 1992 and 2015 and shows a 0.13% to 0.2% improvement in survival rates for black newborns with black pediatricians (though no statistically significant improvement for black obstetricians)….

Even the much more modest Greenwood result—which amounts to a difference of fewer than 10 Florida newborns a year—is flawed. It uses linear regression, appropriate for modeling continuous normally distributed variables like height or LSAT scores but not for categorical low-probability events like "newborn death." The proper methodology would be a logistic model. The authors did one, hidden deep in an appendix rather than the body of the paper.

There, the most highly specified model still shows an improvement in black newborn survival. But if you know how to read the numbers—the authors don't say it—it also shows black doctors with a statistically significant higher mortality rate for white newborns, and a higher mortality rate overall, all else being equal.

As I've noted before, Justice Sotomayor likes to play fast and loose with statistics regarding race in the United States. In particular, she decides which groups she describes as relevant "racial minorities" based on whether it suits her political agenda.

To wit, along with African Americans she designates Latino Americans as a racial group. It's true that many Americans perceive Latinos to be a racial minority. But it's also true that historically speaking the US government classified the vast majority of Latinos as white, Latinos are a multiracial group of mostly European origin, about half of Latinos identify as white, and most importantly in terms of legal analysis, Latinos have been classified in American law as a minority ethnic group, people of "Spanish culture or origin, regardless of race" since 1978. Meanwhile, when inconvenient (which is almost always), she ignores Asian Americans, who have, with the occasional exception of South Asians, been legally treated as a racial minority since the 1850s. (The other two official minority groups, Native Americans and Native Hawaiians/Pacific Islanders, make up less than one percent of the US population.) Say what you will regarding whether Hispanics/Latinos should be considered a race or "people of color" but it's hard to see how such monikers would apply to them but not to Asian Americans.

Justice Sotomayor continues her pattern in SFSA, even though Harvard and UNC both follow US law in treating Asian American as a racial classification and Hispanic as an ethnic one that emphatically includes Hispanics who self-identify as white, including, explicitly, people whose ancestors immigrated from Spain to the US. Indeed, Sotomayor explicitly designates "Latinos" as a racial group (e.g., footnote 18, while ignoring that not all Hispanics are Latinos), and largely either ignores Asian Americans, or lumps them together as whites.

She accomplishes this be focusing on the classification of "underrepresented minorities." This classification not only has no legal basis, it is something of a tautology. In any country with multiple minority groups, some of them will be "underrepresented."

Indeed, in the US within every major official racial and ethnic classification, some subgroups are "underrepresented" and some "overrepresented." Nigerian Americans, for example, are "overrepresented," even though black Americans as whole are "under-represented." Hmong Americans are "underrepresented," though Asian Americans a whole are "over-represented." A 2012 study of the ten largest Latino subgroups found that while 32% of Colombian Americans had a college degree, only 7% percent of Salvadoran Americans did. Sotomayor acknowledges none of this, treating each of the official classifications as homogenous. Read More

The just-completed SCOTUS term hardly matches the last one in terms of blockbuster church-and-state decisions. The justices did issue a couple of important rulings, though, one of which suggests they may be rethinking an important element of their anti-discrimination jurisprudence.

The first case is Groff v. DeJoy, which concerns the meaning of a phrase in Title VII, the federal law that prohibits employment discrimination based, among other things, on religion. Title VII provides that an employer must reasonably accommodate an employee's religious practice unless the employer is unable to do so "without undue hardship on the conduct of the employer's business." Decades ago, in TWA v. Hardison (1977), a typically confusing Burger Court opinion, the Court suggested that "undue hardship" means any cost that would be beyond "de minimis." Thus, if accommodating an employee's religious practice would require anything more than a trivial adjustment, the employer would need to do nothing. That's pretty weak tea, especially for an anti-discrimination statute.

In Groff, the Court ruled unanimously that the de minimis standard is not the correct reading of Title VII. True, Hardison used the phrase "de minimis" in describing an employer's obligation, but other language in the decision suggested a stricter standard. In fact, the Groff Court said, the test for "undue hardship" is whether accommodating an employee's religious practice would cause the employer to incur a substantial increased cost in the context of the employer's business. The Court left it for the EEOC (and lower courts) to apply the substantiality test in "a common-sense manner."

The Court predicted that not much would change because of its decision, since the EEOC already does a pretty good job at this. It's true that "common-sense manner" doesn't provide a lot of guidance—and in today's polarized culture, the notion that "common sense" exists on a question of religious accommodation might be aspirational. But a 9-0 opinion suggests that the Court thinks enough shared ground exists to support a reasonably predictable jurisprudence on what a "substantial" cost would be.

The second case is 303 Creative v. Elenis, which has received much more attention. Although 303 Creative is a free speech rather than a free exercise case, it has church-state implications. Colorado's public accommodations law, known as CADA, prohibits discrimination based on, among other things, sexual orientation. In 303 Creative, a commercial web designer argued that requiring her to create websites for same-sex weddings, as CADA would do, would violate her free speech rights, since it would require her to say something she did not believe. Designing a website for a same-sex wedding, she argued, would express her approval of same-sex marriage, which she disapproved on religious grounds.

In a 6-3 decision by Justice Gorsuch, the Court ruled for the designer. Colorado had a compelling interest in preventing discrimination in the market, Gorsuch wrote, but that interest did not outweigh the designer's free speech rights. He noted that Colorado had stipulated that the designer was willing to serve gay customers: she didn't object to serving gay people, but to the message she would be asked to express. Justice Sotomayor's dissent ridiculed this distinction, but Justice Gorsuch is not the first high-court judge to make it. In Lee v. Ashers Bakery (2018), the UK Supreme Court drew the same distinction in ruling that UK anti-discrimination law did not require a baker to design a cake with a pro-same sex marriage message. Indeed, Justice Gorsuch cited Ashers Bakery in support of his conclusion.

The distinction between discrimination based on a customer's status (not allowed) and discrimination based on the message a customer requests (constitutionally protected) could turn out to be important in other contexts as well. For example, a dozen years ago, in CLS v. Martinez (2010), the Court dismissed the idea that a Christian student group at a public university could legally exclude persons who engage in same-sex conduct. The Christian group maintained that it did not wish to exclude persons because of status but conduct: the group did not wish to endorse conduct it found objectionable on religious grounds. The Court dismissed that argument. In the context of LGBT rights, it wrote, discrimination based on conduct amounts to discrimination based on status, much as a tax on wearing yarmulkes would amount to a tax on Jews. The distinction the Christian group was trying to draw did not exist.

Many people would agree with that, but 303 Creative suggests the Court no longer does. Martinez was a factually complicated case that, like 303 Creative, turned on the parties' stipulations. But, after 303 Creative, couldn't a Christian group maintain that it excludes LGBT persons based on message, not status—more precisely, that the group doesn't want to express approval of conduct it finds objectionable on religious grounds? Perhaps the Court won't take the logic that far. But Justice Gorsuch's opinion in 303 Creative suggests the Court might decide a case like CLS v. Martinez differently today.

I'm just about finished with my commentary about the Supreme Court term. Yet, I still have some difficulty reconciling the Chief Justice's opinions in Allen v. Milligan and in Students for Fair Admissions v. Harvard. In the Voting Rights Act case, he deferred extensively to Congress's findings concerning racial discrimination, and he stood by precedent from the Burger Court. In SFFA, he didn't even consider what Congress had to say about racial discrimination, and effectively overruled precedent from the Burger Court. (Indeed, SFFA and Dobbs bear some similarities--the Chief pretended to follow precedent, when he fact he rewrote them.) I felt like I was reading from two different Justices.

How do we explain Milligan and SFFA? Perhaps one explanation might be some sort of balance. The Chief Justice cast one vote that supports progressives on race, and one vote that opposed progressives on race. According to this view, the Supreme Court is like a bank of legitimacy. Make a deposit in Milligan, make a withdrawal in SFFA, and end up with a balanced register. The Chief Justice gets to serve as the creditor and the debtor. This analogy brings to mind Justice Scalia's observation from Adarand Constructors v. Pena (1995):

Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual, and its rejection of dispositions based on race, or based on blood. To pursue the concept of racial entitlement-even for the most admirable and benign of purposes-is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

And what about Justice Kavanaugh? Along with the Chief, he was the only other Justice who was in the majority in both the VRA case and the affirmative action cases. Moreover, his concurrences in both cases were quite similar. In Milligan, he wrote that"race-based redistricting cannot extend indefinitely into the future." And in SFFA, he wrote that race-based affirmative action cannot extend indefinitely into the future. Sounds familiar.

Justice Kavanaugh has now completed with fifth term on the Court. And consistently he votes with the Chief Justice in 95% of the cases. Back in the early 1990s, Justice Thomas was accused of being a follower of Justice Scalia. But Justice Scalia admitted that he was often pushed to the right by Justice Thomas. With regard to Chief Justice Roberts and Justice Kavanaugh, who is leading and who is following? By all accounts, the Chief is in the lead, and Justice Kavanaugh is following. One metric: Justice Kavanaugh has written very, very little this term on his own. According to EmpiricalSCOTUS, "In terms of total word counts for opinions this term, Justice Thomas wrote the most and Justice Kavanaugh wrote the least." He has very few separate writings where he stakes out his own position on the law. And I observed earlier than his majority opinions are so short and under-argued.

After five years on the bench, I struggle to think about what Justice Kavanaugh's jurisprudential contributions are. I will still give him credit for his Calvary Chapel concurrence, which presaged the framework in Roman Catholic Diocese. But beyond that opinion, I can't think of much. When he does concur, he makes anodyne observations that assuage the left or balm the right. There is not much going on. And virtually no deep dive into the Constitution's original meaning. At most, he is a traditionalist--the Court should do it what is has done before, unless it has done something bad for too long, in which case it must do something else.

Justice Kavanaugh was touted as the most experienced Supreme Court nominee in modern history. If true, what has he done with that experience? Justice Barrett, who had very little judicial experience, is making her mark on the major question doctrine, stare decisis, originalist litigation strategies, and a few other areas. Justice Gorsuch has very clear priorities with regard to Indian law and the administrative state. But what about Justice Kavanaugh? He rarely votes the "wrong" way. But his individual contributions are utterly forgettable. Which opinion of his will be included in a casebook, and studied for years to come? As an author of a casebook, I can't think of any.

With Justice Kavanaugh, two lyrics from the Hamilton musical come to mind. Aaron Burr sang, Talk less, smile more, don't let them know what you're against or what your'e for. But Hamilton sang, I'm not throwing away my shot. I'm with Hamilton.

Of course, there is always time to correct course. We'll see what next Term brings.

As a general matter, the Supreme Court hands down opinions when they are ready. That opinions came at such a slow pace this term perhaps reflects the fact that the Justices were taking more time to write fewer opinions. Moreover, it is unsurprising that the biggest cases of the year will often take the longest. The affirmative action cases, for example, were argued on Halloween but came down on the penultimate day of the term. It took some time to muster together 240 pages of opinions!

Still, there is some conventional wisdom that the Court staggers the release of the biggest cases on the final week of the term. The Chief Justice, the thinking goes, follows some sort of strategy that considers how the decisions will play in the public sphere. If this conventional wisdom is correct, I can think of a few possible strategies. First, the Chief Justice may try to mix up the conservative and liberal results on a given day so the Court seems balanced. Second, the Court may try to cram in all conservative decisions on one day, and all liberal decisions on another. Third, the Court can save the most conservative rulings for the final day of the term, which this year came before a long Fourth of July weekend. That way, they will be buried in the press. All of these strategies rely on contestable marketing strategies, which I don't think any on person (let alone the Chief Justice) can understand.

But is there actually a strategy? Let's look at the big cases for June 2023:

• Friday, June 30 - 303 Creative, Biden v. Nebraska
• Thursday, June 29 - Groff, SFFA v. Harvard
• Tuesday, June 27 - Moore v. Harper
• Thursday, June 15 - Haaland v. Brackeen
• Thursday, June 8 - Allen v. Milligan

Arguably, the biggest "liberal" decisions--Brackeen and Milligan--came down on June 8 and 15. And Moore v. Harper, another quasi-liberal victory, was not saved for the final two days of the term. Until the morning of June 29, the Court was looking quite moderate this term. And then, bam! Affirmative action, compelled speech, and student loans in rapid succession. The Court took a final turn to the right on the way out the door before a long weekend. Why does this approach make strategic sense? If the Chief was trying to moderate things, he could have easily held Moore v. Harper for later in the week. Really, if the Chief was trying to manage the newscycle, he would have held onto Milligan till the final week to juxtapose Voting Rights with affirmative action. Everyone already forgot about the Alabama case by the end of June.

What about the timing of June 2022?

• Thursday, June 30 - WV v. EPA, Biden v. Texas
• Wednesday, June 29 - Castro-Huerta
• Monday, June 27 - Kennedy v. Bremerton School District
• Friday, June 24 - Dobbs
• Thursday, June 23 - Bruen, Berger v. NAACP
• Tuesday, June 21 - Carson

What was the strategy here? Well, the Friday Dobbs drop took everyone by surprise, as that blockbuster would usually be saved for the end of the term. But there does not seem to be any deliberate left-right staggering here. Then again, Red June went solid to the right.

What about the timing of June/July 2021?

• Friday, July 2 - Brnovich
• Thursday, July 1 - AFP v. Bonta
• Friday, June 25 - TransUnion v. Ramirez
• Wednesday, June 23 - Collins v. Yellen, Cedar Point Nursery, Mahanoy
• Monday, June 21 - Arthrex
• Thursday, June 17 - Fulton, California v. Texas

I don't see any obvious strategy for the staggering of opinions. Maybe the conventional wisdom is wrong, and the Court simply releases opinions when they are ready.

In any event, the final day of the term allowed the Chief Justice to send a clear message to the public in Biden v. Nebraska.

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.

With his final words before summer break, the Chief Justice did what he did best--defend the Supreme Court.

In a 2015 amicus brief, I contended that President Obama's executive action known as DAPA was not supported by statutory authority. And in a footnote, I made an alternate argument, hinting at what would become known as the major questions doctrine:

[F]inding the wholesale authority in these provisions that the government claim would be akin to discovering the "elephants in mouseholes" that the Supreme
Court has described as indicia of an implausible delegation from Congress. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133–35 (2000).

To this day, the Supreme Court has somehow managed to avoid resolving this issue. In 2016, after Justice Scalia's death, the Court split 4-4 on the validity of DAPA. And in 2020, the Court ruled that the Trump Administration's rescission of DACA failed to adequately consider reliance interests. Last month, Judge Hanen heard oral argument in Texas's challenge to the DACA policy. Yes, this case is still going on.

Last week, I wrote about how U.S. v. Texas affects the standing inquiry in the DACA case. Here, I will discuss the impact of Biden v. Nebraska on the merits of the DACA litigation.

DACA turns on two sources of statutory authority:

6 U.S.C. § 202(5): "The Secretary shall be responsible for . . . Establishing national immigration enforcement policies and priorities."

8 U.S.C § 1103(a): "The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens…"

That's it.

In Nebraska, Chief Justice Roberts's majority opinion found that the HEROES Act did not support the Secretary's loan forgiveness policy. A few elements seem relevant to the DACA litigation.

First, the Chief Justice found that the government's reading of the HEROES Act grants the Secretary the power to "rewrite" the statute.

Under the Government's reading of the HEROES Act, the Secretary would enjoy virtually unlimited power to rewrite the Education Act. This would "effec[t] a 'fundamental revision of the statute, changing it from [one sort of] schemeof . . . regulation' into an entirely different kind," West Virginia, 597 U. S., at ___ (slip op., at 24) (quoting MCI, 512 U. S., at 231)—one in which the Secretary may unilaterally define every aspect of federal student financial aid, provided he determines that recipients have "suffered direct economic hardship as a direct result of a . . . national emergency." 20 U. S. C. §1098ee(2)(D).

So too with the immigration two statutes cited above. If those provisions grant the Secretary the power to implement DACA, he would have the authority to rewrite the laws. (Curiously, Justice Kavanaugh's concurrence in Moore v. Harper focused on the state supreme court's ability to "rewrite" election law, so this standard is in the air.)

Second, the Chief Justice looked to "past practice under the statute."

So too here, where the Secretary of Education claims the authority, on his own, to release 43 million borrowers from their obligations to repay $430 billion in student loans. The Secretary has never previously claimed powers of this magnitude under the HEROES Act. As we have already noted, past waivers and modifications issued under the Act have been extremely modest and narrow in scope. The Act has been used only once before to waive or modify a provision related to debt cancellation: In 2003, the Secretary waived the requirement that borrowers seeking loan forgiveness under the Education Act's public service discharge provisions "perform uninterrupted, otherwise qualifying service for a specified length of time (for example, one year) or for consecutive periods of time, such as 5 consecutive years." 68 Fed. Reg. 69317. That waiver simply eased the requirement that service be uninterrupted to qualify for the public service loan forgiveness program. In sum, "[n]o regulation premised on" the HEROES Act "has even begun to approach the size or scope" of the Secretary's program. Alabama Assn., 594 U. S., at ___ (slip op., at 7).

Way back in 2014, I explained how there was no past practice to support DACA. People disagreed with me then, and now. In any event, the language here is quite helpful to Texas.

Read More

The Americans with Disabilities Act was enacted in 1990. This landmark statute provided federal protection for a wide range of disabilities. But the statute created an express exception for "gender identity disorders not resulting from physical impairments." In Williams v. Kincaid, the Fourth Circuit found that "gender dysphoria" was not equivalent to what the ADA referred to as a "gender identity disorder." Thus, the panel ruled, gender dysphoria was a disability protected by the ABA. The panel favored this reading "to avoid a serious constitutional question." Specifically, the panel concluded that excluding protections for "gender dysphoria would discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment." And, under circuit precedent (Grimm v. Gloucester County School Board), the classification did not survive intermediate scrutiny.

But the panel went further. It found that the enactment of this statute was tainted "evidence of discriminatory animus toward transgender people." The panel then quoted legislative history from members of Congress that analogized "gender identity disorders" with immoral and criminal behavior. Many of these statements echoed the claim in the Defense of Marriage Act that the law evinced a "moral disapproval" of same-sex marriage. The panel cited Romer, a classic Kennedy opinion that relied on the "discriminatory animus" standard.

In light of the "basic promise of equality … that animates the ADA," we see no legitimate reason why Congress would intend to exclude from the ADA's protections transgender people who suffer from gender dysphoria. Nat'l Fed. of the Blind, 813 F.3d at 510. The only reason we can glean from the text and legislative record is "a bare … desire to harm a politically unpopular group[, which] cannot constitute a legitimate governmental interest." Romer.

Since Justice Kennedy's retirement, I have wondered about the status of "animus"- and "bare desire to harm"- jurisprudence. I don't think Romer, Lawrence, or Obergefell will be overruled. (Sorry, Justice Thomas). But I am skeptical the Court finds similar animus in a future case.

Kincaid was appealed to the Supreme Court. On the mop-up list, the Supreme Court denied certiorari. Justice Alito, joined by Justice Thomas, dissented from the denial of certiorari. And he flagged the Equal Protection issue:

The panel majority sought to bolster its interpretation of the ADA by invoking the doctrine of constitutional avoidance. The majority argued that even if the ADA's text did not require this interpretation, it would nevertheless be necessary in order "to avoid a serious constitutional question" under the Equal Protection Clause. Citing Circuit precedent, the majority found that "the ADA's exclusion of 'gender identity disorders' " from the definition of disability was "evidence of . . . discriminatory animus" by Congress, and to support this conclusion, the majority pointed to "moral judgment[s]" expressed by legislators who backed the exclusion for "gender identity disorders."

Justice Alito rejected this Kennedy-esque approach to the Equal Protection Clause:

Finally, the Fourth Circuit's animus analysis relies too heavily on statements made by a few Members of Congress and does not sufficiently take into account the many considerations that Congress may have had in mind in adopting a piece of major legislation like the ADA. A legislative body "need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns." Williams-Yulee v. Florida Bar (2015). Congress may also have thought that coverage of gender-identity-related conditions would raise special free speech and free exercise concerns. It seems more than uncharitable to say, as the Fourth Circuit did, that "[t]he only reason we can glean" for excluding gender identity disorders is "'a bare . . . desire to harm a politically unpopular group.'" 45 F. 4th, at 773.

Were this the test, then Windsor would have upheld the Defense of Marriage Act. But we have a different Court now then we did a decade ago.

Cert was denied in Kincaid. And on quick glance, there appear to be vehicle problems. But the Supreme Court should clarify this issue sooner rather than later. It will be very difficult for a circuit split like this to sustain itself. Eventually, enough circuits will agree with the Fourth Circuit, thus making this issue harder to revisit.

In Brackeen, Justice Barrett faulted counsel for the adoptive parents. She wrote that they failed to "offer a theory for rationalizing" the Indian Commerce Clause. Therefore, she was not willing to accept their position. Admittedly, Indian law is very complicated, and the attorneys did not have answers to all of their questions. But in my view, that was not the usual standard in constitutional litigation. Rather, as I saw it, Justice Barrett was imposing a "staggeringly heavy" burden on the petitioners. Indeed, I'm not sure if the arguments in United States v. Lopez, as they were presented in 1996, would have been sufficient for Justice Barrett.

Will Baude offers a way of explaining Barrett's approach in Brackeen, as well as in Fulton v. City of Philadelphia. He calls it the "look before you leap" principle:

In both cases, Justice Barrett wants some account of where a theory of the law is supposed to take her before she decides whether to embrace it. In Brackeen, that's a theory of how to reconcile—or to not reconcile, either one!—the challengers' theory of federal Indian power with the Court's cases. In Fulton it's a theory of what would replace Employment Division v. Smith if Smith is to be overruled. It demonstrates, I think, a quite sensible refusal to just muddle through and assume the law will sort itself out later.

In 2021, I was somewhat flummoxed by Justice Barrett's concurrence in Fulton. She raised a host of questions that should have been apparent to anyone who has considered Smith over the past three decades. None of the questions were particularly insightful or novel. Sometimes, I attend a presentation of a terrible paper. I think the author has a bad idea that I cannot get behind, so I come up with a few random, polite questions to at least show interest in the topic, but I don't really care about the answers. That was how I saw Justice Barrett's Fulton concurrence--she was going through the motions because she did not want to overrule Smith. Was Justice Barrett actually interested in the answers to her questions? Doubtful. In the wake of Fulton, the Court has denied several petitions that would have given parties a chance to answer Justice Barrett's questions.

Was Justice Barrett looking before she leapt in Fulton and Brackeen. I think that theory only works if she would ever actually jump. With regard to Brackeen, I doubt any litigant can ever present her a perfect theory wrapped with an originalist bow about the Indian Commerce Clause. And with regard to Fulton, Smith is safe and sound, at least at it was interpreted in Roman Catholic Diocese and Fulton. And perhaps Justice Barrett may recognize Equal Protection problems with ICWA, but I am skeptical there are even four votes to grant cert on that followup case. Striking down ICWA on as applied grounds would create nearly as much chaos as the facial challenge.

Rather than "look before you leap," I think Justice Barrett simply favors judicial restraint. She resembles Justice Scalia, circa late 1980s or early 1990s. Her not-entirely-positive review of Barnett's Our Republican Constitution is the cleanest distillation of her judicial philosophy. Here is an excerpt from the introduction:

In this essay, I begin by developing the connection between Barnett's theory of the Constitution and his approach to judicial review. I then express doubt about the historical support for Barnett's approach, contend that the task he would give courts fails to account for the realities of the legislative process, and argue that he overestimates the institutional capacity of courts. I conclude by praising Barnett's attention to the often-misunderstood concept of judicial restraint. That is a point on which many can agree with Barnett, regardless whether they accept his republican take on our Constitution.

Justice Gorsuch would not sign onto this review. For all his faults, he is not a judicial restrainter. What about Justice Kavanaugh? I have no clue what he actually thinks. (More on his output this term in another post.)

That background brings me to Justice Barrett's concurrence in Biden v. Nebraska. She offered what I think is the Court's strongest defense of the major questions doctrine. But why did she do work that the parties did not? With all respect, the parties in Nebraska, and in West Virginia, did not present a coherent "theory for rationalizing" the MQD. (There are countless law professors who wrote lots of tweets to prove this point!) Justice Barrett did so on her own. I see no problem with this approach, but it does undermine her critiques of the lawyers in Brackeen for not connecting all the dots. If Justice Barrett wants to figure something out on her own, she can. (And I wish she would do it more, because she is one of the Court's best big thinkers!)

What, then, is the difference between Brackeen and Fulton on the one hand and Nebraska on the other hand? Well, Professor Barrett gave some thought to substantive canons before her appointment. Indeed, she cites her article in the first sentence of Part I-A, and then throughout her concurrence:

Substantive canons are rules of construction that advance values external to a statute. A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117 (2010) (Barrett). Some substantive canons, like the rule of lenity, play the modest role of breaking a tie between equally plausible interpretations of a statute. United States  v. Santo (2008) . Others are more aggressive—think of them as strong-form substantive canons. Unlike a tie-breaking rule, a strong-form canon counsels a court to strain statutory text to advance a particular value. Barrett 168. There are many such canons on the books, including constitutional avoidance, the clear-statement federalism rules, and the presumption against retroactivity. Id., at 138–145, 172–173.

As best as I can recall, Justice Barrett never wrote about the Free Exercise Clause and Smith, so it is indeed plausible she never gave much thought to the consequences of overruling that case. (Just like Justice Thomas never thought much about Roe before his confirmation!) And Justice Barrett likewise never wrote about the Indian Commerce Clause. (Who did?) But Justice Barrett did write about substantive canons! Perhaps, then, we can predict that Justice Barrett is comfortable "leaping" into issues that she wrote about as an academic. What are those topics? Her Senate Judiciary Committee questionnaire from her Seventh Circuit nomination lists eleven law review articles:

1. Catholic Judges in Capital Cases, Marquette Law Review (1998) (with John Garvey) (49 pages)
2. Stare Decisis and Due Process, University of Colorado Law Review (2003) (66 pages).
3. Statutory Stare Decisis in the Courts of Appeals, George Washington Law Review (2005) (37 pages).
4. The Supervisory Power of the Supreme Court, Columbia Law Review (2006).
5. Procedural Common Law, Virginia Law Review (2008) (77 pages).
6. Stare Decisis and Nonjudicial Actors, Notre Dame Law Review (2008) (27 pages).
7. Substantive Canons and Faithful Agency, Boston University Law Review (2010).
8. Precedent and Jurisprudential Disagreement, Texas Law Review (2013) (28 pages).
9. Suspension and Delegation, Cornell Law Review (2014).
10. Countering the Majoritarian Difficulty, Constitutional Commentary (2016) (Book Review) (18 pages).
11. Congressional Originalism, 18 University of Pennsylvania Journal of Constitutional Law (2016) (with John Copeland Nagle) (45 pages).

Litigants looking to present a case to the Supreme Court should read these few articles carefully, and cite accordingly. Justice Barrett's willingness to do something that was not done before will depend on how cohesive of a theory the litigants present. Though, in all likelihood, if Justice Barrett is not going to leap on the first jump, she will probably never leap. She said as much in Nebraska:

Thus, even assuming that the federal courts have not overstepped by adopting such canons in the past, I am wary of adopting new ones—and if the major questions doctrine were a newly minted strong-form canon, I would not embrace it. In my view, however, the major questions doctrine is neither new nor a strong-form canon.

The defining feature of Justice Barrett's jurisprudence so far is restraint, rather than originalism. I think Dobbs only came out the way it did because Roe and Casey were in fact egregiously wrong, and those decisions have wreaked decades of havoc on our republic. But beyond Dobbs, at least so far, Justice Barrett will take the road more traveled, and do what was done before.

Nebraska v. Biden was something of a surprise. Based on my read of the briefs and oral argument, I came to the tentative conclusion that Missouri lacked standing. But the Chief Justices's opinion was more persuasive than I expected. Then again, the Chief can be extremely slippery with his legal analysis.

I have no idea if the Missouri Attorney General can sue on behalf of the Missouri Higher Education Loan Authority (MOHELA). The majority resolved this issue largely on the basis of Arkansas v. Texas, which allowed Arkansas to sue on behalf of the University of Arkansas. The dissent responded that the University of Arkansas lacked an independent basis to sue, while MOHELA does have such authority. Rather, the dissenters parsed through decisions of the Missouri Supreme Court which found that similar institutions were not instrumentalities of the state. Does the dissent accurately read Missouri law? Who knows?

It seems to me that the correct course here would have been for the Eighth Circuit to certify the question to the Missouri Supreme Court. That body could have authoritatively resolved the status of MOHELA. Given that the Supreme Court's ruling sweeps nationwide (hello nationwide vacatur!), certification would have been appropriate. Instead, we are left with a standing analysis that is probably good for one ride. Well, if the Biden Administration goes forward with another executive action on student loan relief, Missouri can once again say mahalo MOHELA.

Moving onto the merits, I think the Court was on fairly strong textualist ground. (I'll talk about the major question doctrine in another post.) The Chief's discussion of "waive or modify" was far more persuasive than Justice Kagan's attempt to splice "waive" and "modify" as distinct concepts. Moreover, I'm not even sure which provisions of law were being "waived." The dissent put a lot of weight on the ability of the Secretary to modify the "terms." But such a reading would allow the Secretary to enact virtually any changes to the statutory program. Of course, the majority does not address how Secretary DeVos could have temporarily suspended interest payments. If the majority is right, then the Trump Administration acted unlawfully. I do not think that recent exercise of executive power serves as sufficient past practice to justify the Biden administration's policy. But that history does weaken Nebraska's case, however much.

In the end, the effect of Nebraska v. Biden was fairly broad--millions of well-educated Americans who received federally-subsidized loans will have to pay back the debt they agreed to pay back. But the legal consequences of this decision are fairly minor. This decision applies only to a rather obscure pocket of federal law, that had never before been used in this fashion. In another post, I will discuss the relationship between the student loan cases, and the never-ending DACA litigation.

Update: A helpful reader writes that the Missouri Supreme Court declines to accept certifications from the Eighth Circuit, even though a statute authorizes certification. I stand corrected!

For nearly five decades, affirmative action was sustained on the opinion of Justice Lewis Powell. The key vote in Bakke thought that a diverse student body could improve learning on campus. Ultimately, Grutter adopted Justice Powell's rationale, and held that universities have a compelling interest to pursue the educational benefits that flow from a diverse student body. That simple premise spawned an entire institution around "diversity." Universities were forced to frame every decision they took in terms of using "diversity" as a way to help students learn. Of course, the real justification for affirmation action could be found in Justice Marshall's Bakke opinion. He grounded racial preferences for black students (and not other races) in the centuries of oppression, slavery, segregation, and discrimination. Indeed, the "educational benefits" approach tokenized minority students as curiosities for white students to learn from. Advocates for affirmative action had to grit their teeth to stay in the good graces of old white folk like Justices Powell and O'Connor.

Fast forward to Students for Fair Admissions. The majority opinion did not formally reverse Grutter--though I agree with Justice Thomas that the precedent is all but overruled. Still, the "educational benefits" rationale seems to have been nullified. Harvard identifies several specific educational benefits it was pursuing:

Respondents have fallen short of satisfying that burden. First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies the following educational benefits that it is pursuing: (1) "training future leaders in the public and private sectors"; (2) preparing graduates to "adapt to an increasingly pluralistic society"; (3) "better educating its students through diversity"; and (4) "producing new knowledge stemming from diverse outlooks."

The Court easily found those rationales were not sufficient:

Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately "train[ed]"; whether the exchange of ideas is "robust"; or whether "new knowledge" is being developed?

Of course, the shortcomings of the "diversity rationale" were apparent in Fisher II, and Grutter. Nothing has changed. The voluminous trial record was irrelevant. But the earlier Courts, stocked with "brave" judges of "wisdom," did not ask the hard questions. They blindly deferred to the universities.

After SFFA, are there any actual educational benefits that flow from diversity, which could be considered an articulable compelling interest? I don't think so. The remainder of the Chief's opinion barely mentions educational benefits. The buzz words to end all buzz words are no longer so buzzy. Justice Powell's concurrence is dead. Justice O'Connor's majority opinion is irrelevant.

It was to be expected that the majority would discard the "educational benefits" rationale. But I was surprised at how little that rationale featured in the dissents. Justices Sotomayor and Jackson wrote at length about white supremacy, institutional racism, and other reasons to justify affirmative action. But the purported benefits that can be obtained in the classroom were not on center stage. The phrase "educational benefits" appears only four times in Justice Sotomayor's dissent, and zero times in Justice Jackson's dissent.  Indeed, as Chief Justice Roberts pointed out, Justice Sotomayor cited Justice Powell "barely once," while Justice Jackson "ignores Justice Powell altogether." Rather, the dissenters rely almost exclusively on Justice Marshall's dissent. Under well-settled law, the universities have not invoked any sort of "remedial" interest. To the contrary, the dissenters adopted the en vogue theory that our society is plagued by structural racism and the Fourteenth Amendment must be interpreted to remedy that oppression. Chief Justice Roberts observed that "there is a reason" the dissenters have to rely on Justice Marshall's dissent, because they "surely cannot claim the mantle of stare decisis."

Going forward, can we drop the "educational benefits" charade? No one ever actually believed that racial preferences were justified by those purported benefits. But if not "educational benefits," then what compelling interest would suffice? The more I read the Chief's opinion, the more I conclude that no interest would suffice. Instead, admissions officers will have to go beyond trying to satisfy strict scrutiny. They will focus on this paragraph, and this paragraph alone, to consider race indirectly through the only means allowed:

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) "[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows," and the prohibition against racial discrimination is "levelled at the thing, not the name." Cummings v. Missouri (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

In any event, we can finally say farewell to the "educational benefits" rationale. You will not be missed.