Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Amy Crevola of Corvallis, Oregon, operates a free pantry out of her carport, where she provides clothes, hygiene products, household goods, baby items, and food to those in need. But after the city received a complaint, it sent Amy a letter demanding she comply with the city's home-business ordinance and convert her carport into a garage. But Amy isn't running a business—she's helping those in need, and she has a right to do so. So this week IJ urged the city to take another look at that policy. Learn more here.Read More
The California "Safe at Home Confidential Address Program" provides for special forwarding addresses for people who swear that they are "attempting to escape from actual or threatened domestic violence, sexual assault, stalking, human trafficking, or elder or dependent adult abuse," and need to "establish new names or addresses in order to prevent their assailants or probable assailants from finding them" (and possibly provide some corroborating evidence).
And Cal. Code Civ. Proc. § 367.3, enacted in 2019, adds to that:
A protected person who is a party in a civil proceeding may proceed using a pseudonym, either John Doe, Jane Doe, or Doe, for the true name of the protected person and may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the protected person.
Such litigants must confidentially inform the other parties and the court of their true identity, but the identity may not appear in the court records. No showing is required of any specific reason for pseudonymity, beyond the person's participation in the Safe at Home program.
Does this mean that a person, just by joining the Safe at Home program, may also retroactively reopen his past cases, and then get them sealed or pseudonymized? Several recent federal decisions, all apparently involving one litigant (a self-described "avid blogger on record sealing expungement, and First Amendment issues"), deal with the subject. Here's the latest judicial response, from Judge Kent Gloria Navarro's opinion today in Del Nero v. All State Ins. Co. (D. Nev.), to that litigant, who had earlier had some (though mixed) success in his campaign:
"and the 'victimhood' of white women." "In support of its decision, the court ... pointed to defense counsel's description of Henderson as 'quite combative' on the witness stand and her description of Thompson as 'intimidated and emotional about the process.'"
From Justice Alito's statement today respecting the denial of certiorari, joined by Justice Thomas, in Thompson v. Henderson (for the opinion this criticizes, see here):
I concur in the denial of certiorari because this case is in an interlocutory posture, and it is not clear whether it presents any "federal issue" that has been "finally decided by the" Washington Supreme Court. Cox Broadcasting Corp. v. Cohn (1975); see 28 U.S.C. §1257. But if the Washington courts understand the decision below to be as sweeping as it appears, review may eventually be required.
This case started as an ordinary tort suit over a car accident. The victim of the accident, plaintiff Janelle Henderson, is black, as was her trial counsel. Alicia Thompson, the defendant, is white, as was her trial counsel. Thompson admitted fault, so the suit was over damages. Henderson claimed that the whiplash she suffered from the accident "seriously exacerbated" her Tourette's syndrome, and she asked for $3.5 million in damages.
Defense counsel naturally tried to convince the jury that such a large award was not justified, and the jury, which awarded Henderson only $9,200, was apparently persuaded. Henderson moved for a new trial, claiming that the small award was based on racial bias, but the trial court denied the motion without a hearing.
In a remarkable decision, the Washington Supreme Court reversed due to the possibility that the jury's award was tainted by prejudice, and it remanded for a hearing that appears to have no precedent in American law. In support of its decision, the court cited several statements made by defense counsel in her closing argument. It pointed to defense counsel's description of Henderson as "quite combative" on the witness stand and her description of Thompson as "intimidated and emotional about the process." The court found that these comments played on stereotypes about the "'angry Black woman'" and the "victimhood" of white women.
The court also cited defense counsel's insinuation that Henderson was motivated by a desire for a financial windfall, as well as her suggestion that Henderson could not have suffered $3.5 million in damages since she had not even mentioned the accident when she saw her doctor a short time thereafter. The court thought that this argument "alluded to racist stereotypes"—that black women are "lazy, deceptive, and greedy" and are "untrustworthy and motivated by the desire to acquire an unearned financial windfall." The court also faulted defense counsel for suggesting that Henderson's lay witnesses, all of whom were black, had been prepared or coached because they all used the same phrase—"'life of the party'"—to describe Henderson's personality before the accident. The court viewed this tactic as inviting jurors to make decisions about these witnesses "as a group and … based on biases about race and truthfulness."
Today's Supreme Court decision holding that the Biden Administration's $400 billion student loan forgiveness plan is illegal, relied in part on the "major questions doctrine." That's the controversial rule that requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast 'economic and political significance.'" If the statute isn't clear, courts must rule against the executive's claims that it has the authority in question.
Critics have long argued that MQD is contrary to textualism. In her concurring opinion today, Justice Amy Coney Barrett disagrees, and offers a textualist defense of the rule:
The major questions doctrine situates text in context,which is how textualists, like all interpreters, approach the task at hand…..
Context also includes common sense, which is another thing that "goes without saying." Case reporters and casebooks brim with illustrations of why literalism—the antithesis of context-driven interpretation—falls short….
Why is any of this relevant to the major questions doctrine? Because context is also relevant to interpreting the scope of a delegation….
Think about agency law, which is all about delegations. When an agent acts on behalf of a principal, she "has actual authority to take action designated or implied in the principal's manifestations to the agent . . . as the agent reasonably understands [those] manifestations." Restatement (Third) of Agency §2.02(1) (2005). Whether an agent's understanding is reasonable depends on "[t]he context in which the principal and agent interact," including their "[p]rior dealings," industry "customs and usages," and"the nature of the principal's business or the principal's personal situation." Id., §2.02….
With that in mind, imagine that a grocer instructs a clerk to "go to the orchard and buy apples for the store." Though this grant of apple-purchasing authority sounds unqualified, a reasonable clerk would know that there are limits. For example, if the grocer usually keeps 200 apples on hand, the clerk does not have actual authority to buy 1,000—the grocer would have spoken more directly if she meant to authorize such an out-of-the-ordinary purchase. A clerk who disregards context and stretches the words to their fullest will not have a job for long.
This is consistent with how we communicate conversationally. Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: "Make sure the kids have fun." Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter's trip consistent with the parent's instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent's instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park….
In my view, the major questions doctrine grows out of these same commonsense principles of communication. Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway, we also "expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'" Utility Air, 573 U. S., at 324….
This expectation of clarity is rooted in the basic premise that Congress normally "intends to make major policy decisions itself, not leave those decisions to agencies." United States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC 2017) (Kavanaugh, J., dissenting from denial of reh'g en banc). Or, as Justice Breyer once observed, "Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters [for agencies] to answer themselves in the course of a statute's daily administration." S. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986).
The point Barrett is driving at with her grocery clerk and babysitter examples is that we generally expect clearer and more precise statements of intent when we delegate broad power to an agent than when we delegate relatively narrow authority. And this is consistent with standard textualist interpretive principles emphasizing the need to interpret language in context, and in accordance with ordinary usage.
I advanced a similar textualist defense of MQD here:
[C]ontrary to popular belief, there is in fact a textualist justification for MQD. Most textualists hold that statutory language should be interpreted in accordance with its "ordinary meaning." And they also recognize that ordinary meaning varies based on context. The same words and phrases might have different meanings depending on the situation…
Such contextual considerations can justify the major questions doctrine. In most situations, people expect greater clarity and precision when granting an agent broad power, than when authorizing something narrower. For example, my wife and I recently hired a contractor to repair the old and somewhat dilapidated deck attached to our house. Imagine we signed an agreement giving the contractor the authority to "modernize and improve" the deck, and he then proceeded to tear the whole thing down and replace it with a bigger and more modern structure.
As a semantic matter "divorced from context," the contractor could argue that tearing down and replacing the deck counts as modernization and improvement. Indeed, it might result in greater modernization and improvement than a more limited repair job would have! But most ordinary readers of the agreement would readily understand that the contractor had exceeded his authority. Tearing down and replacing the entire deck is a big, expensive step that requires clearer and more specific authorization than a vague mandate to "modernize and improve…."
The same point applies to statutory language. If anything, most ordinary readers probably assume that vast grants of legal authority over millions of people require even more clarity and precision than do contractual agreements like the deck replacement. For example, in the loan forgiveness case, the Biden Administration relies on a vague provision of the HEROES Act that allows the executive branch to "waive or modify" regulations governing federal student loans to justify cancellation of over $400 billion in student loan debt. Even if semantics "divorced from context" suggests that mass cancellation qualifies as a type of waiver or modification, contextual ordinary meaning indicates that such an enormous delegation of power requires greater precision.
Justice Barrett's argument seems very similar to mine. Her grocer and babysitter examples even have much in common with my contractor analogy. These are all everyday-life situations where agents clearly exceeded the scope of the authority granted to them, even though their actions might be justified under a more literal approach to textualism that ignores the significance of scale.
I am not suggesting Justice Barrett somehow "stole" this idea from me. I highly doubt she read or knew about the post where I introduced it. Rather, she probably just had the same kind of intuition about context and ordinary meaning (or, in her words, "commonsense principles of communication") as I did. The fact we arrived at the same idea independently provides some (very modest) additional support for the point that it is intuitive to expect greater precision in broad grants of authority.
As Barrett recognizes, textualism isn't the only possible justification for MQD. It can also be defended on the grounds that it helps enforce constitutional constraints on delegation. In addition, the textualist rationale for MQD doesn't necessarily prove the Supreme Court got any particular application of the doctrine right.
I myself think the Court applied it correctly in today's decision and the the eviction moratorium and vaccine mandate rulings, but perhaps not in West Virginia v. EPA, where Justice Kagan's dissent makes a strong argument that the statute did in fact clearly grant the authority the Biden Administration claims.
From Justice Jackson's opinion, joined by Justice Sotomayor, dissenting from the denial of certiorari today in Harness v. Watson:
The President of the 1890 Mississippi Constitutional Convention said it plain: "Let us tell the truth if it bursts the bottom of the Universe … We came here to exclude the negro. Nothing short of this will answer." To further that agenda, the Convention placed nine crimes in §241 of the State's Constitution as bases for disenfranchisement, believing that more Black people would be convicted of those crimes than White people. See Williams v. Mississippi (1898) (acknowledging that purpose, but expressing "no concern" regarding the Conventioneers' objective); Ratliff v. Beale (Miss. 1896) (similar); 47 F. 4th (CA5 2022) (per curiam) (en banc) (case below) (recognizing §241's discriminatory aim).
Eight of those crimes have remained in §241 since 1890, without interruption. Thus, the Convention's avowed goals continue to be realized via its chosen mechanism: Today (just as in the Convention's aftermath), thousands of Black Mississippians cannot vote due to §241's operation. Petitioners brought this legal action to challenge §241's continued use of the eight crimes as bases for felon disenfranchisement.
The Court of Appeals for the Fifth Circuit properly recognized that, under this Court's settled precedent, the mere passage of time cannot insulate from constitutional challenge a law that was invidious at its inception. That court could not escape acknowledging the similarities between this case and Hunter v. Underwood (1985) (Rehnquist, J., for the Court), in which this Court unanimously invalidated an Alabama constitutional provision passed in 1901 because its "enactment was motivated by a desire to discriminate against blacks on account of race" and it "continue[d] to th[at] day to have that effect." But en route to affirming the District Court's grant of summary judgment against petitioners, the Fifth Circuit proceeded to make two egregious analytical errors that ought to be corrected.
So writes Justice Alito, joined by Justice Thomas, in a statement today respecting the denial of certiorari in Roberts v. McDonald:
The circumstances underlying the dispute below have long since come and gone, and I therefore agree with the Court's decision to deny review. But I write to note that this case involves an issue of ongoing importance: whether the Equal Protection Clause permits governments to use race or ethnicity as a proxy for health risk and therefore "prioritize the treatment of patients" on that basis. Roberts v. Bassett (2d Cir. 2022) (Cabranes, J., concurring) (noting the "portentous legal issues" implicated by such policies).
When "several new COVID–19 treatments for high-risk patients" were approved in late 2021, the treatments were "briefly in short supply" relative to need. New York State "instruct[ed] providers to follow" its guidance on "higher priority risk group[s]" so long as the "supply shortage persisted." Echoing similar guidance from the federal Centers for Disease Control and Prevention, the State's guidance specified that "'[n]onwhite race or Hispanic/Latino ethnicity should be considered a risk factor'" when prioritizing patients. The State justified the use of race and ethnicity as proxies for health risk by appealing to "'longstanding systemic health and social inequities.'"
The Supreme Court just announced that it will consider this issue, in U.S. v. Rahimi; this is unsurprising, since the Court is generally inclined to review cases where a court held that a federal statute was unconstitutional, and where the federal government asks for review. Here's my post from February, when the Fifth Circuit decided the case (see also Stephen Halbrook's post after the denial of en banc rehearing, where he noted that Supreme Court review was likely):
From U.S. v. Rahimi, decided today by the Fifth Circuit, in an opinion by Judge Cory Wilson, joined by Judges Edith Jones and James Ho:
The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022), it is not.
The court rejected the view that, under Heller and Bruen, legislatures can disarm anyone who isn't a "law-abiding, responsible citizen[]":
There is some debate on this issue. Compare Kanter v. Barr (7th Cir. 2019) (Barrett, J. dissenting), abrogated by Bruen, 142 S. Ct. 2111, with Binderup v. Att'y Gen. (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments). As summarized by now-Justice Barrett, "one [approach] uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature's power to take it away." The Government's argument that Rahimi falls outside the community covered by the Second Amendment rests on the first approach. But it runs headlong into Heller and Bruen, which we read to espouse the second one.
Unpacking the issue, the Government's argument fails because (1) it is inconsistent with Heller, Bruen, and the text of the Second Amendment, (2) it inexplicably treats Second Amendment rights differently than other individually held rights, and (3) it has no limiting principles….
including when the requirement is imposed by antidiscrimination laws, for instance when such laws require web site designers who create opposite-sex wedding sites create same-sex wedding sites.
The logic of today's 303 Creative LLC v. Elenis should apply, I think, to photographers, videographers, calligraphers, freelance writers, and the like (as well as performers such as wedding singers). It wouldn't apply to businesses that provide nonspeech goods and services, such as wedding venues, limousine drivers, caterers, and the like. It is thus a narrow case, authorizing First Amendment defenses to only a limited set of applications of antidiscrimination law, when speech creators want to choose the particular content of speech that they seek to create.
At the same time, it provides strong protection for speech creators, whether their motivations are religious or not: The decision rests on the Free Speech Clause and not on the Free Exercise Clause. And it provides protection regardless of whether the antidiscrimination law bans discrimination based on sexual orientation, religion, race, political belief, and so on. The Court reasoned that, if the Free Speech Clause here was rejected:
The government could require "an unwilling Muslim movie director to make a film with a Zionist message," or "an atheist muralist to accept a commission celebrating Evangelical zeal," so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.
The Court's decision thus entitles these hypothetical freelance movie director, muralist, and website designer to refuse to create such works.
The opinion doesn't resolve what would happen to products or services that aren't traditionally speech but that may be seen as symbolic, such as flower arrangements and wedding cakes. (Dale Carpenter's and my view, which we've expressed in a past amicus brief, is that decisions not to create wedding cakes, at least ones without writing or other visual ideological messages, are not protected by the First Amendment, while decisions to create photographs, web sites, and the like are. We analogize in that brief to speech restrictions, where First Amendment law must decides what's a restriction on speech and what on constitutionally unprotected conduct: A town, for instance, can't ban live performances, newspapers, or photographers, or limit their number; but the First Amendment doesn't stop it from banning or limiting hotels, caterers, limousine drivers, bakers, florists, and the like. Dale and I also filed an amicus brief, together with others, on the web site designer's side in this case.)
Here are excerpts from Justice Gorsuch's majority opinion:
Today, in Biden v. Nebraska, the Supreme Court ruled that President Biden's $430 billion loan forgiveness plan is illegal because not authorized by Congress under the 2003 HEROES Act. It also ruled that, at least one of the plaintiffs, the state of Missouri, has standing to sue. Chief Justice John Roberts wrote the majority opinion, in a 6-3 split along ideological lines. He concludes that the plan is unauthorized under the text of the HEROES Act and also runs afoul of the "major questions" doctrine.
In my view, this decision is correct on both standing and the merits. It is an important step towards curbing executive abuse of emergency powers and executive raids on the Treasury for purposes not authorized by Congress.
In the companion case, Department of Education v. Brown, the Court unanimously (and correctly, I think) ruled that the plaintiffs lack standing.
I will have much more to say about this case later in the day, including in a forthcoming article for CNN.
I previously outlined my views on the merits here, and on standing here, here, and here.
It took me about ten hours to edit the entire 237-page decision. (I would have finished sooner, but I was stuck in United Airlines purgatory for much of the day.) The edited version is 57 pages. I realize this cut is probably far too long for a single-class session.
I need to give some serious thought to how to cover affirmative action. For starters, I think I would reduce the coverage of Grutter and Gratz. Fisher I and II probably fall out as well. In one class, I could reasonably cover the Chief Justice's majority opinion and Justice Sotomayor's dissent. Justice Gorsuch focuses at some length on the statutory issue, which is not really germane to a ConLaw class, so I would probably skip it. And Justice Kavanaugh's concurrence repeats the 25-year theme over and over and over and over again. I would skip that as well. Justice Thomas's concurrence--especially the originalist defense of the color-blind Constitution--would make more sense in the chapter on the Reconstruction Amendments, after Plessy. I know that Justice Jackson's dissent will win plaudits from progressives, but there is very little actual law in it. Her entire dissent may be suited for a seminar on race in the law, but only a short excerpt would be needed for a 1L class.
I will have much more to say about this case. And I'm way behind. I have lots of thoughts on Mallory. And I didn't even get to read Groff or Counterman yet. Stay tuned.
From In re Martel, decided yesterday by the South Carolina Court of Appeals (Judges Paula Thomas, Stephanie McDonald, and Blake Hewitt):
This case involves a family court judge's direct contempt citation against Appellant, attorney Lauren Martel. Martel argues the family court erred in finding her in criminal contempt at a hearing in which the judge's impartiality and temperament were questioned. We agree, and we reverse the finding of contempt.
The first family court judge assigned to hear the emergency motion in this contentious custody litigation properly recused herself "to avoid any appearance of impropriety" when Martel's client [Mother] …, expressed concerns about the first judge's familiarity with the family of [Father] …. The then-chief administrative judge for Fourteenth Circuit family court matters stepped in to the January 10, 2019 emergency hearing and rescheduled the matter for the following week. At that time, Martel advised that this second judge might have a conflict as well. In response, the family court instructed her to "file something. We want it in writing."
The following day—January 11—Martel emailed the scheduling clerk—copying the family court judge, Father's counsel, and others—and identified several issues she believed necessitated the second judge's recusal as well. We will not detail all of the concerns here, but the email included an allegation that the second judge "appears to be practicing law in this case rather than presiding over this serious matter in [an] unbiased manner" possibly due to his close relationships with Father's family and counsel and the judge's personal bias against Mother's attorney, Martel….
In keeping with our podcast's promise of being "unscheduled and unpredictable," my co-host Dan Epps and I managed to schedule a series of awkwardly timed trips throughout the month of June, which is a really ironic way to run a Supreme Court podcast. But yesterday we did manage to release a long episode, Demokratia, that might be of interest to Conspiracy readers. Here's the summary:
We record our first inter-continental episode, as Will reports in from a visit to Tel Aviv. We then dive in to two of this month's opinions: Haaland v. Brackeen, which rejects a series of challenges to the Indian Child Welfare Act, and United States v. Hansen, which upholds a federal immigration law against a free speech overbreadth challenge.
The title of the episode is the Hebrew word for "democracy," inspired by the experience I summed up in this tweet (though I got the translation wrong):
Last night I went to watch the protests against judicial reform in Tel Aviv. Truly amazing that more than a hundred thousand people would turn out, week after week, to chant "democrati" in the name of defending a court from politics. pic.twitter.com/EPinYVERug
In our subsequent discussion of Haaland v. Brackeen, much discussed by others on this blog, I discuss a potential pattern in Justice Barrett's treatment of precedent, something I had noticed earlier in her concurrence in Fulton v. City of Philadelphia and which is reflected as well in her majority opinion in Brackeen. I think of it as the "look before your 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.
To be sure, there are important differences between these two examples. In Fulton, the question was whether to overrule a major precedent; in Brackeen part of the problem was a prior one, an insufficient explanation of whether the parties wanted major precedents overturned and if so which ones. But I think it will be worth watching for future examples of this principle, which I expect we will see.
The podcast will likely stay dark for a couple weeks, and then start analyzing the end-of-term cases just when you least expect it.
A preliminary assessment of today's decisions. The majority rightly struck a blow against the use of racial preferences for purposes of advancing "diversity" in education. But there are some flaws in its reasoning.
Today, the Supreme Court ruled against Harvard and the University of North Carolina in cases challenging the legality of their use of racial preferences in student admissions. The decision severely restricts, even if it doesn't completely ban, the use of racial preferences of purposes of achieving "diversity" in educational institutions. Chief Justice Roberts' majority opinion does an excellent job of laying out many of the flaws in diversity preferences, including nebulous goals, reliance on crude racial classifications and stereotypes, and the unconstitutional use of race as a "negative" to disadvantage Asian-American applicants, among others. Justice Neil Gorsuch's concurrence correctly points out that the cases could have been resolved more easily by relying on the plain text of Title VI of the Civil Rights Act of 1964.
On the downside, the Court did a poor job of reconciling its decisions with previous precedents giving much broader leeway for "diversity" preferences, most notably Grutter v. Bollinger(2003) and Fisher v. University of Texas II (2016). Some parts of the majority opinion could also potentially enable the continuation of some racial preferences in disguise.
No blog post could do justice to the 237 pages of majority, concurring, and dissenting opinions in this case! But I will try to expand somewhat on several key points.
First, it's important to remember that Harvard and UNC justified their use of racial preferences by reference to the supposed educational benefits of racial and ethnic "diversity." Even if you think affirmative action can be justified on some other basis, such as compensating for historical injustice, today's rulings are focused on the far more dubious diversity rationale.
And, as Roberts and Gorsuch effectively explain, that rationale is so full of holes that it can't possibly pass muster under the "strict scrutiny" imposed on the use of racial classifications. For example, the racial categories into which Harvard UNC divide up applicants (black, white, Latino, Asian, etc.) are extremely crude and verge on simplistic stereotyping. As Gorsuch points out, the "Asian" category "sweeps into one pile East Asians (e.g., Chinese, Korean, Japanese) and South Asians(e.g., Indian, Pakistani, Bangladeshi), even though together they constitute about 60% of the world's population." The other categories are not much better. WASPS, Jews, and immigrants from Bulgaria and Sweden are all equally "white." "Latino" likewise includes people from a vast range of nations and cultures. "Black" lumps in native-born African-American descendants of slaves with immigrants and children of immigrants from a wide range of countries in Africa and the Carribbean. The "narrow tailoring" required by strict scrutiny surely compels a far more nuanced assessment.
As Chief Justice Roberts explains, this kind of lumping also inevitably leads to crude stereotyping, based on the assumption that all members of these broad categories have relatively similar views and backgrounds, different from those of all the other broad aggregates. That is pretty obviously false in many cases. For example, an upper-middle class white person probably has much more in common with a native-born African-American from the same economic background in the same city, than either is likely to have with an immigrant from Bulgaria or Nigeria, even though the former is classified as "white," and the latter "black." Along related lines, the exchange between Clarence Thomas' concurring opinion in today's cases and Ketanji Brown Jackson's dissent powerfully demonstrates how two native-born African-Americans from southern states can have vastly different perspectives on the the black American experience, its history, and what that history implies for today.
The crudeness of the racial and ethnic categories used by Harvard and UNC also undercut Justice Jackson's otherwise powerful appeal to the historic disadvantages faced by African-Americans. She is obviously right that blacks are on average worse off than whites on various social and economic dimensions, and that the legacy of slavery, Jim Crow, and other discrimination is a large part of the reason why.
But even if blacks are worse off, on average, that doesn't mean that all or even most black applicants to elite institutions like Harvard have suffered greatly from discrimination. Many are relatively affluent members of the upper middle class. Conversely, many of those discriminated against by affirmative action themselves come from groups with their own histories of disadvantage and discrimination (most notably Asians).
One of my black classmates at Yale Law School was the son of the attorney general of his state. That does not mean his life was free of racism (for example, he still experienced racial profiling by police, which is a serious injustice opponents of affirmative action, including my fellow libertarians, should pay more attention to). But it seems unlikely he was, overall, as disadvantaged as, say, a recent Asian immigrant, or a poor white applicant from Appalachia.
The horrific historic injustices suffered by African-Americans do not justify lumping them all into one group for purposes of racial preferences. The same goes for whites, Latinos, and others.
If the racial and ethnic categories Harvard and UNC use are nebulous and crude, the same applies to the goal these categories are supposed to serve. As Roberts also explains in detail, it is hard to say what is meant by "diversity," what the educational benefits of it are, and how we can measure whether and to what extent they have been achieved.
None of this matters much if you think universities should be given broad discretion to use racial preferences, so long as it is for seemingly good motives. But even supporters of affirmative action usually acknowledge that there needs to be at least some rigorous scrutiny of government's use of racial classifications. They can't just be given a pass, like run of the mill government policies. That's true whether you are an originalist, a living constitutionalist, or some combination of both.
Consider, for example, Justice Ruth Bader Ginsburg's statement that "[t]he mere assertion of a laudable governmental purpose, of course, should not immunize a race-conscious measure from careful judicial inspection…. Close review is needed 'to ferret out classifications in reality malign, but masquerading as benign,' Adarand, 515 U.S., at 275 (Ginsburg, J., dissenting), and to 'ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups.'" The Harvard and UNC policies can't possibly survive a genuine "careful judicial inspection."
In the majority opinion, Chief Justice Roberts also emphasizes that race cannot be used as a "negative" in university admissions. In one sense, as he also points out, any use of racial preferences creates such a negative for non-preferred groups. That's an inevitable feature of the zero-sum nature of college admissions at selective institutions. But he also notes evidence that Harvard specifically tried to restrict the percentage of Asian-American applicants admitted, through the use of various devices, such as giving them lower personal ratings. In different ways, Roberts, Gorsuch, and Thomas note that discrimination against Asian applicants makes a mockery of the "diversity" rationale, and also of the idea that racial preferences are supposed to benefit historically disadvantaged groups. After all, Asians themselves have a long history of being victimized by state-sponsored discrimination, of which the detention of Japanese-Americans in internment camps during World War II is just one of many examples.
The Court could, however, have avoided the need to go into the details of the Harvard and UNC programs if it had simply decided these cases based on Title VI of the Civil Rights Act of 1964, which states that "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
There is no exception here for racial and ethnic preferences adopted for purposes of promoting diversity, or indeed for any other reason. Harvard, a private institution, is actually covered only by Title VI; it is not constrained by the anti-discrimination requirements of the Equal Protection Clause of the Fourteenth Amendment, which only applies to government entities (including UNC). Gorsuch is right to argue that the Harvard and UNC cases could have been resolved based on Title VI alone. However, only Thomas was willing to join Gorsuch's concurring opinion on this point.
That may be because previous Supreme Court decisions have ruled that Title VI's antidiscrimination standards are identical to those of the Equal Protection Clause, and the Supreme Court has a high bar for overruling statutory precedents, reaffirmed just recently in Allen v. Milligan. To my mind, the deviation from the plain text of Title VI is so egregious and so poorly reasoned that overruling statutory precedent would have been justified here. But the majority of justices clearly don't agree.
Less excusably, the Roberts' majority opinion and Brett Kavanaugh's concurrence play fast and loose with the Court's affirmative action precedents, such as Grutter and Fisher II. They contend that today's majority opinion is completely compatible with those previous precedents and doesn't require any significant modification of them. I won't try to go over the various convoluted details here. But I think the dissents by Justices Jackson and Sotomayor effectively point out that these precedents give far greater deference to university decision-making on affirmative action policy than does today's majority opinion. The majority would have done better to overrule Grutter, or at least significantly limit its scope.
The failure to overrule or limit Grutter leaves open the possibility that "diversity" might still be a compelling state interest that could justify the use of racial preferences in admissions, in at least some circumstances. Justice Thomas says that "[t]he Court's opinion rightly makes clear that Grutter is, for all intents and purposes, overruled." I don't think so. Otherwise, there would be no need for Roberts' and Kavanaugh's elaborate efforts to square their reasoning with that precedent. That said, the majority opinion does make it very hard to justify anything like the kinds of crude racial classifications used by many universities today.
In a footnote, Chief Justice Roberts notes that today's decision does not apply to the special context of "the nation's military academies." There are indeed special justifications for affirmative action in the military context that probably don't apply elsewhere. Still, this is another sign that the decision doesn't categorically ban all racial preferences, even in higher education.
The majority also emphasizes that universities can still consider applicants' experiences of racial discrimination and other effects that racial or ethnic identity may have had on their lives:
[N]othing 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, 4 Wall. 277, 325 (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.
Roberts is right that universities can legitimately consider applicants' individual experiences with racial discrimination, and other ways in which their racial and ethnic backgrounds may have affected them. He's also right that such consideration should not become a smokescreen for reintroducing racial preferences by the back door. But I worry, nonetheless, that many institutions will try to do the latter under the guise of the former.
More generally, it is likely that many institutions will try to replace explicit racial preferences with seemingly "race-neutral" alternatives that try to target characteristics that correlated with membership in a particular racial or ethnic group. Such subterfuges were used on a large scale to try to resist desegregation after Brown v. Board of Education. And we already see them in recent efforts to preserve racial preferences for blacks and Latinos, and keep down the percentage of Asian students at selective institutions.
It is also not entirely clear what the implications of today's ruling are for racial preferences outside education, such as in the field of government contracting. The conservative majority on the Court is likely to take a dim view of those preferences, as well. But exactly how dim is hard to tell.
Despite these and other caveats and shortcomings, today's decisions are an important step in the right direction. They won't put an end to all use of racial preferences. But they reaffirm and extend the fundamental principle that such discrimination is deeply unjust, and at least presumptively unconstitutional.
UPDATE: I wrote and posted this before seeing Will Baude's insightful post on the same topic. I agree with most of what he says there.
The standard pro hac vice admission order by Judge Donald Molloy (D. Mont.) now appears to include the provision,
Use of artificial intelligence automated drafting programs, such as Chat GPT, is prohibited.
Pro hac vice admission is required for lawyers who aren't members of the court's bar (here, the U.S. District Court for the District of Montana) but who want to be allowed to participate in a particular case (with a bar member as local counsel). Pro hac status is routinely granted, but is still viewed as a discretionary decision by the court, not as a matter of entitlement. Presumably Judge Molloy disapproves of use of AI programs generally, but felt inclined to apply the requirement only to lawyers who take advantage of what seen as a discretionary benefit.
on being cited by opinions in today's Student for Fair Admissions case: Randy and Gail were cited in Justice Thomas's concurrence, and David was cited several times in Justice Gorsuch's concurrence.
From Judge Lewis Kaplan's opinion today in Carroll v. Trump (S.D.N.Y.):
This is a defamation case brought by writer E. Jean Carroll against President Donald Trump, as he then was, for statements Mr. Trump made in June 2019 shortly after Ms. Carroll publicly accused him of sexual assault. In those statements, Mr. Trump denied Ms. Carroll's accusation, stated that he "has no idea who this woman is," and suggested that she fabricated her accusation for ulterior and improper purposes, including to increase sales of her then-forthcoming book in which she discusses having been sexually assaulted by Mr. Trump and other men.
In a second and very closely related case ("Carroll II"), Ms. Carroll sued Mr. Trump for the alleged sexual assault itself and for defamation based on a statement that Mr. Trump published on his social media platform in October 2022 that was substantially similar to his June 2019 statements. That case was tried in April and May 2023. The jury unanimously found that Mr. Trump had sexually abused Ms. Carroll and defamed her in his October 2022 statement. It awarded Ms. Carroll a total of $5 million in compensatory and punitive damages: $2.02 million for her sexual assault claim, and $2.98 million for her defamation claim.
In this case ("Carroll I"), Ms. Carroll seeks damages and other relief for defamation for Mr. Trump's June 2019 statements only. The matter now is before me on Mr. Trump's motion for summary judgment dismissing the action on four grounds:
Trump is entitled to absolute presidential immunity
Trump's statements were not defamatory per se and Ms. Carroll cannot establish special damages
the majority of Trump's statements were nonactionable opinion
Carroll consented to Mr. Trump's allegedly defamatory statements. He argues also that punitive damages in any case would be unwarranted on Ms. Carroll's defamation claim.
His arguments are without merit….
Roberta Kaplan, Michael Ferrara, Shawn Crowley, Trevor W. Morrison, Matthew J. Craig, and Joshua Matz (all of Kaplan Hecker & Fink LLP) represent Carroll.
