OK, she said it in 2006 as a dean, not a Justice, and about women and law review membership at Harvard, not SFFA and minority admissions, but I would be interested in knowing why she has expressed this concern about women, but not URMs.
Relatedly, my former colleague (now DC Circuit judge) Neomi Rao once presented a talk noting a perceived anomaly in Justice Ruth Bader Ginsburg's jurisprudence. Ginsburg insisted on strict, formal legal equality for men and women, even when favoritism would benefit women. She did not apply the same reasoning when it came to race. Ginsburg, when asked about how she reconciles the two positions, acknowledged that she had never thought about it. I wonder if Kagan has.
In the SFFA affirmative action case, Chief Justice Roberts for the majority, Justice Thomas, concurring, and especially Justice Gorsuch, concurring, argued that in addition to other legal defects in the defendants' affirmative action programs, the classifications used they used for "diversity" purposes were not properly tailored to serve the schools' interest in diversity.
Some of this discussion, especially in Gorsuch's opinion, came directly from the amicus brief filed on my behalf by Cory Liu. Undoubtedly, I'll have more to say about this in the future.
For now, though, I wanted to note Roberts' language. He wrote:
It is far from evident … how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.
For starters, the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other. Meanwhile other racial categories, such as "Hispanic," are arbitrary or undefined. [citation omitted] And still other categories are underinclusive. When asked at oral argument "how are applicants from Middle Eastern countries classified, [such as] Jordan, Iraq, Iran, [and] Egypt," UNC's counsel responded, "[I] do not know the answer to that question."
Note the bolded language. I don't know whether Roberts thinks "Hispanic" is an arbitrary classification, an undefined classification, or both. But it strikes me that this language isn't getting the attention it deserves. The Supreme Court essentially held that "Hispanic" is a presumptively illegitimate classification, yet it's used all the time. I would have thought that would be big news.
UPDATE: It's irritating that the Justices continue to refer to the Hispanic classification as a "racial" one, even though it's been an ethnic, not racial classification, since it's creation in 1978. I've explained how this error came about, but in the interests of the sort of precision that Supreme Court opinions are known for, Hispanics are legally defined as an ethnicity who can be of any race. It's especially surprising that Roberts didn't get this right, because the fact that "Hispanic" is the only ethnic classification that is deemed a minority for diversity (and other) purposes strengthens the case for arbitrariness.
Achieving this goal will require a lot more than banning racial preferences in college admissions. That includes some measures that will make the political right uncomfortable, as well as the left.
In the Supreme Court's recent ruling against racial preferences in university admissions, Chief Justice John Roberts writes that "[e]liminating racial discrimination means eliminating all of it." It's a great principle. But much remains to be done to realize it.
If we truly want a color-blind government, we will have to go well beyond banning affirmative action in universities. And some of the necessary changes will annoy the political right, as well as the left. The Court's ruling won't immediately eliminate the use of racial preferences in education and elsewhere. And color-blindness cannot be achieved unless and until we also eliminate policies where the government continues to discriminate against racial and ethnic minorities.
Although the Court's rulings against racial preferences at Harvard and UNC are likely to severely constrain such practices in higher education, they may not put a complete end to them, because the majority didn't overrule earlier decisions permitting their use for purposes of pursuing "diversity." In addition, schools may well try to replace explicit racial preferences with supposedly "race-neutral" alternatives that try to target characteristics that correlated with membership in a particular racial or ethnic group. We already see such subterfuges at work 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 important to remember that higher education is not the only institution that uses affirmative action, and perhaps not the most important. Only a very small percentage of Americans attend highly selective colleges and universities (the kind that typically use racial preferences for affirmative action), and only a small percentage of the latter are either beneficiaries or victims of affirmative action policies.
There are widespread racial preferences in government contracting and in a variety of federal and state government hiring practices and programs. Last week's decisions signal that these preferences are more vulnerable to legal challenges than previously. But it will take much effort - and, probably, much litigation - to root them out.
Affirmative action in education, government hiring, and public contracting are policies espoused primarily by the political left. But policies favored by many on the right will also need to change if we are going to achieve color-blindness.
The discriminatory government policy that affects the most Americans is probably not affirmative action, but racial profiling by law enforcement. A 2019 Pew Research Center poll found that 59% of black men and 31% of black women say they have been racially profiled by police. Such perceptions are backed by numerous studies. Even powerful politicians are not immune. Black Republican senator and presidential candidate Tim Scott has recounted multiple incidents in which he was racially profiled by Capitol police. Racial profiling is especially prevalent in immigration enforcement, where it is even backed by official government policy - including under liberal Democratic presidents, such as Biden and Barack Obama.
Conservatives and other advocates of color-blindness have long advocated overturning Supreme Court decisions like Grutter v. Bollinger(2003), which authorize affirmative action in some circumstances. But few condemn United States v. Brignoni-Ponce (1975), the Supreme Court decision holding that federal law enforcement can use "Mexican ancestry" as a proxy for deciding which people to stop and detain in border areas.
Defenders of racial profiling argue it's a useful tool because membership in a racial or ethnic group may correlate with criminality. Young black males have higher crime rates than members of most other groups. In border areas, Mexican appearance is likely correlated with being an illegal migrant. But this kind of use of race-as-proxy is similar to affirmative action, whose defenders have long argued that being black or Hispanic correlates with being a victim of discrimination or a contributor to "diversity." If it is wrong for university officials to use race or ethnicity as a crude proxy, the same goes for law enforcement.
While most individual incidents of racial profiling inflict only very modest harm, the cumulative impact is substantial, spreading fear in minority communities and poisoning relations between them and law enforcement. True advocates of color-blindness cannot turn a blind eye to discrimination when the government officials doing it carry badges and guns and have the power to arrest, detain, and sometimes even kill or injure citizens. Otherwise, cynics will justifiably suspect we only oppose racial discrimination when it victimizes whites, as in the case of affirmative action.
Advocates of color-blindness must also confront the difficulties posed by facially neutral government policies that, historically, were enacted in large part for reasons of racial and ethnic prejudice. Exclusionary zoning restrictions on housing construction are a particularly important example, which has cut off millions of people from housing and job opportunities. Many such policies were enacted for the purpose of keeping blacks and other minority groups out of majority-white neighborhoods.
Color-blindness doesn't require abolition of all policies that were, at one time, adopted out of motives rooted in racial or ethnic prejudice. Among other things, difficult questions are raised by policies that were originally adopted for those purposes, but later perpetuated or extended for other reasons. The same goes for policies enacted out of mixed motives.
However, such policies probably do have to go if the evidence shows they would not have been adopted in the absence of a desire to discriminate on the basis of race or ethnicity. The Supreme Court has long held that, if evidence indicates the presence of racist motives in the adoption of a government policy, the burden of proof shifts to the state, which must show it would have adopted the same policy regardless. But, to understate the point, that rule hasn't always been effectively enforced.
I have focused on achieving color-blindness in government because the Constitution, government's monopoly power over various services, and moral principles all impose broader anti-discrimination obligations on state entities than on the private sector. The latter can legitimately engage in a variety of discriminatory policies that government cannot. But, if like many progressives (and, increasingly, some on the right, as well), you believe government and private discrimination are more alike than different, than private institutions will also have to change some of their policies. For example, private employers that have their own affirmative action racial preferences must abandon them.
Color-blindness does not, however, require a society where all racial and ethnic groups have similar income levels and occupational profiles. Many differences between groups are due to factors other than discrimination. For example, several Asian groups have much higher incomes than the national average in the US, as is also true of Jews and Nigerian immigrants, among others. It's hard to argue that's because US government policy is somehow biased in favor of Asians, Jews, and Nigerians.
Color-blindness also likely does not require somehow restoring the distribution of wealth and income to what it would have been in the absence of a history of discrimination. Given the enormous counterfactuals involved, it is likely impossible to determine what that distribution would have looked like. Moreover, if large-scale historical injustice have been averted, hardly any of currently existing Americans would have been born in the first place. History would have taken a different course, and the world would be populated by a different set of people. In that limited, but important, sense we are all actually beneficiaries of the great evils of history.
Despite these significant caveats, achieving color-blindness requires a lot more than many might assume. Confronted with the true scope of what must be done, some conservatives and others might recoil, and retreat to the idea that government may use racial preferences, after all, so long as they have a seemingly benign purpose. But, of course, that's the very idea underlying affirmative action; defenders of that policy genuinely believe it is essential to achieving racial justice. Moreover, history shows that seemingly well-intentioned racial and ethnic discrimination can cause enormous harm. The architects of exclusionary zoning and racist immigration policy surely believed they were benefiting society. But they in fact inflicted enormous harm for very little gain.
Ultimately, racial and ethnic discrimination by the state is unjust, because it judges people by morally arbitrary circumstances of ancestry and birth that they have no control over, and because history shows that its harmful effects vastly outweigh any putative benefits. At the very least, there should be a strong presumption against such policies that can be overcome only by overwhelming evidence indicating they create great benefits that could not be achieved by other means. By that standard, affirmative action, racial profiling, exclusionary zoning, and much else are likely to fall short.
UPDATE: I have changed the title of this post from the original "How to Make Government Color-Blind," and made a few minor changes in wording.
A panel of the Fourth Circuit handed down a 2-1 decision today in Porter v. Board of Trustees of North Carolina State University. The opinion can be found here.
Porter is a tenured statistics professor in the college of education. He was unhappy with the direction of the higher ed program, with which he was affiliated. In particular, he thought the college and the program had gone woke and was promoting social justice over good scholarship. He expressed those views internally in departmental email and departmental meetings. As a consequence, he was removed from the higher ed program on the grounds that he was insufficiently collegial.
The majority held that professorial speech in department meetings and the like is speech pursuant to their job duties under Garcetti v. Ceballos and does not fall under a narrow exception for research and teaching. As a consequence, such speech is entirely unprotected by the First Amendment and does not even reach the balancing test under Pickering v. Board of Education.
Such examples of intramural speech would be protected under traditional academic freedom principles, but they have not received a great deal of attention by courts under First Amendment analysis. I have been writing about applications of Pickering to professorial speech of late -- in the context of teaching and scholarship here and in the context of extramural speech here. This case does not have direct implications for either of those contexts, but it is not a great precedent for robust judicial protection of dissident faculty members at state universities.
An educational psychologist and expert consultant for the Pixar movie "Inside Out," John first made a name for himself in the area of anger management; he later expanded his work into high performance, stress management, positive psychology, and the creation of happy relationships. John helps men step out of the "man box" that society has created for them and that prevents them for fulfilling their potential as human beings.
Why do many men act irritable in romantic relationships but don't want to discuss what's wrong? Is it true that women want long-term relationships more often than men do? Come hear also what lessons John has learned from his own romantic past and what he believes people should look out for on the dating market!
Romance scams remain a (growing) international problem. I am quoted in this CBC News story about a Calgary woman who lost almost 500K Canadian dollars:
Legal expert Irina Manta says people could try more exclusive and expensive online dating services to receive a better vetting process.
But in the meantime, she says, people need to stop blaming the victim.
Manta is a law professor at Hofstra University in Hempstead, N.Y., and the founding director of its Center for Intellectual Property Law.
She says it's tough to put yourself in someone else's shoes. She says sometimes people are down on their luck through no fault of their own. And sometimes, she says, there can be rational reasons why people brush away red flags.
In these cases, she says, it might be a limited dating pool.
"If there are not a lot of awesome people that might want to be in a partnership with you, there's a chance this is not a good person. But maybe there is a chance this is a good person. You're going to sort of keep going for as long as possible," said Manta.
Every year, Randy and I add a handful of new Supreme Court decisions to our casebook's supplement. And I make it a point to edit the case the day it comes out. Doing so forces me to fully understand a case before I talk about it. (I marvel at op-eds written within hours of the release of a two-hundred page opinion!) Last year we added nine cases to the supplement: Dobbs, Bruen, Kennedy, Carson, WV v. EPA, City of Austin, Shurtleff, Torres, and Vaello-Madero. This term was far slower, and five made the cut. You can download them all here:
I considered for inclusion three other cases that were close, but ultimately did not make the cut: U.S. v.Hansen (overbreadth), Samia v. U.S. (Confrontation Clause), and Counterman v. Colorado (threats).
You can read the PDF here and the text here; here are the opening sections:
Writers may have their noms de plume; revolutionaries may have noms de guerre. Here, though, we will speak of (to coin a phrase) the noms de litige, and ask: When pseudonymous litigation is allowed, what sorts of pseudonyms should be used? In particular, how can we avoid dozens of Doe v. Doe precedents or Doe v. University of __, all different yet identically named? This piece discusses some approaches to achieving the twin goals of pseudonyms: protecting privacy and avoiding confusion.
The Options
Courts generally disfavor pseudonymous litigation, but sometimes allow it.1 Indeed, they sometimes themselves pseudonymize cases for publication, even when the party names remain in the court records.2 Both courts and parties also sometimes pseudonymize the names of nonlitigant witnesses and victims. But what kinds of pseudonyms should be preferred? There are many options, including:
Traditional pseudonyms, such as John and Jane Doe, Richard Roe, Paul and Pauline Poe (or even Francis Foe, Walter Woe, or Xerxes Xoe3), XYZ Co., Anonymous, or the archaic Noakes or Stiles.4 Unsurprisingly, there are other names that are used in other Anglophone legal systems, for instance "Ashok Kumar" for unnamed defendants in Indian copyright litigation, and that are likely to make their way into American court one day.5
Fictitious pseudonyms, unrelated to the party's name, such as Wesley Goffs.6
Fictitious first names-plus-initials, such as Wesley G.7
First names plus initials of the party, such as Eugene V.11
Names based on the party's initials, perhaps following the new Navy-Marine Corps Court of Criminal Appeals preference for the military alphabet or the Greek alphabet, such as "Dr. Alex Foxtrot" or "Colonel Donna Whiskey" for, say, Alan Franks or Diane Walters.12
Neutral descriptive pseudonyms, such as Pseudonym Taxpayer, Rose and David Septuagenarian, or Hmong I.13
Potentially argumentative pseudonyms, or more broadly ones that are likely to arouse sympathy, such as Jane Endangered and Jane Imperiled, Whistleblower, Victim A, or Navy Seal.14
Famous-name pseudonyms, such as Publius,15 Hester Prynne from The Scarlet Letter, Gertrude Stein, or Marie, Joseph, and Carol Danvers from the Ms. Marvel/Captain Marvel comics.16
Even likely puns, such as Femedeer (doe, a deer, a feme deer).17
(I focus here on pseudonyms chosen for the purpose of litigation; when parties already have well-established pseudonyms, for instance as authors, there may be reason to retain them, assuming that such pseudonymity in litigation is found to be allowed.18)
The Costs and Benefits
Each option, unsurprisingly, has its strengths and weaknesses.
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.
Pseudonymous litigation generally isn't allowed in defamation cases, even where plaintiff reasonably fears that publicizing her name would increase the harm caused by the defamation—for instance, when the defamatory statement had only been published to a limited group of people. Likewise, here the defamatory statement includes only a photo (which a limited group of people would recognize) and not the plaintiff's name; but that too shouldn't generally justify an exemption from the norm that litigation in public courts should be conducted in public, and the parties' names should likewise be made public. More generally, pseudonymity isn't usually allowed just to avoid risk of reputational or economic harm, risk that is present (certainly for defendants, and often for plaintiffs as well) in a vast range of cases. See The Law of Pseudonymous Litigation, pp. 1457-60.
Query, though, whether the analysis would be any different here, based on the specific factual details of the case: For instance, should it matter that, unlike a typical plaintiff said/defendant said libel dispute, in this case plaintiff's credibility is unlikely to be relevant, since her claim is that she just isn't the person named in the Us story. And courts do indeed sometimes do allow pseudonymity to protect reputation in particular kinds of situations (such as cases over allegedly wrongful expulsions from college), though generally not in ordinary defamation cases.
I'm on the run for the next several days, so I can't speak to all this in detail, but since this blog is The Premier Source for Pseudonymity News (well, the only source that has any specialization in pseudonymity news), I thought I'd flag it for our readers.
From State v. Gibson, decided last Thursday by the Ohio Court of Appeals (Judge Mark Miller, joined by Judges Juergen Waldick and William Zimmerman):
In this appeal we are asked to decide whether calling one's neighbor a "redheaded bitch" as part of a festering feud over driveway access constitutes "fighting words" sufficient to result in a conviction for disorderly conduct ….
"Punishment for disorderly conduct based on spoken words is prohibited unless those words amount to 'fighting words.'" "[N]o matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be, their utterance may not be made a crime unless they are fighting words * * *." "Fighting words" are those that "by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace." To distinguish "fighting words" from expression fully protected under the First Amendment, "'one must look at the circumstances surrounding such utterance.'" …
The "fighting-words" analysis is intensely fact specific and outcomes will vary from case to case, but decisional law offers several helpful guideposts. First, as a general matter, "'something more than mere profanity is required to constitute fighting words.'" "In determining whether profane utterances constitute fighting words, courts have considered whether the conduct accompanying these statements is hostile or threatening." Moreover, "to constitute 'fighting words,' the words chosen must be 'used to describe a person or be directed at a person.'"Finally, although "a person need not actually be provoked to a violent response" for words to be "fighting words," the failure of the targeted party to respond might evidence that the words were not "fighting words." …
Under circumstances like those present in this case, we do not find the simple act of calling someone a "redheaded bitch" would have provoked immediate retaliation. Thus, we conclude that no trier of fact could find that Gibson leveled "fighting words" against Foley as necessary to sustain a conviction for disorderly conduct.
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.
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.
even when plaintiff's lawsuit was connected to her having been allegedly sexually assaulted, which has often (but not always) been seen as a basis for allowing pseudonymity.
In the American legal system, parties are generally expected to participate in their own names, but with several narrow exceptions. One of those exceptions is for certain cases where plaintiffs would have to disclose highly private information about themselves. Courts thus often—but far from always—let plaintiffs proceed pseudonymously when the lawsuit would involve disclosure of alleged sexual assault. (For a list of cases going both ways, see my The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1430-37 (2022).)
In the decision affirmed by the Tenth Circuit in Monday's Luo v. Wang, the lower court had at first allowed plaintiff Luo to proceed pseudonymously, for this very reason: Luo was suing Wang for libel and invasion of privacy based on Wang's statement about a third party's alleged sexual assault of Luo. But the lower court then reconsidered, and denied Luo pseudonymity, because Wang's counsel uncovered evidence of Luo's past litigation:
Mr. Wang pointed to a Jane Doe case Ms. Luo identified in her complaints filed in this action, where she had sued a man for sexual battery and other claims. In other Jane Doe cases, Ms. Luo sued several municipalities and a state for allegedly failing to prosecute two men for separate alleged sexual assaults against her. Mr. Wang, through declarations offered by defense counsel, submitted evidence of Ms. Luo's litigious behavior and discovery abuses in two of her other Jane Doe cases, including her refusal to identify in discovery the other lawsuits she had filed.
In another Jane Doe case, Ms. Luo had persuaded the trial court to allow her to proceed using only her initials, in part, by representing in her motion that the case had gained media attention. In a deposition, Ms. Luo later testified to two additional facts she did not disclose in her motion: (1) the initials she proposed to use did not pertain to her real name but to one or more of her aliases; and (2) the news outlets she claimed had taken an interest had learned of the case from Ms. Luo.
Mr. Wang also submitted evidence that Ms. Luo was subject to a domestic-relations restraining order filed in her real name in state court in Orange County, California. In a decision affirming that order, the court described the underlying dispute:
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