thehill.com/homenews/education/4049473-supreme-court-set-to-rule-on-legality-of-affirmative-action-in-college-admissions-heres-what-to-know

bostonglobe.com/2023/06/15/metro/supreme-court-affirmative-action-timeline

forbes.com/sites/alisondurkee/2023/06/15/supreme-court-could-end-affirmative-action-any-day-heres-what-to-expect/?sh=7f9097814521

two landmark cases are currently oustanding which will potentially redefine the landscape for AA within the US.

1) Students for Fair Admissions Inc. v. President & Fellows of Harvard College - scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-president-fellows-of-harvard-college

Issues: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.

2) Students for Fair Admissions, Inc. v. University of North Carolina - scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-university-of-north-carolina

Issues: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.

AA is already banned in certain states. Polling for AA style initiatives remains a mixed issue.

@gabapentin

@Jay_Cutler

I'm assuming this drops on the very last day of opinions

Apparently there are more opinions coming tomorrow but I don't think this is going to be one of them

Since there are like 20 left to release there are plenty of other ones to drop tomorrow

The fact that there were five votes to not overturn Gingles in Milligan (The three liberals, Chief Justice Roberts and Kavanaugh) did at first make me wonder if a similar thing could happen with the SFFA cases

But Kavanaugh wrote a separate concurrence where he took the time to say that in his mind, "the stare decisis standard for this Court to overrule a statutory precedent, as distinct from a constitutional precedent, is comparatively strict. Unlike with constitutional precedents, Congress and the President may enact new legislation to alter statutory precedents such as Gingles."

I just wrote a long paper for law school about the justice's views on stare decisis, which included Kav's, and I think that Grutter is exactly the sort of case that he would vote to overturn

His concurrence in Ramos lays it out pretty well: law.edu/_media/orientation/Kavanaugh%20--%20RamosvLouisiana-excerpt.pdf

He writes that cases which 1) are "grievously or egregiously wrong," 2) " caused significant negative jurisprudential or real-world consequences," and 3) would not "unduly upset reliance interests" are ripe for overturning despite stare decisis

i think that, in his mind, Grutter would fit all three categories

Despite being one of the main snipers against affirmative action since Parents Involved (where he wrote "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"), I think it's likely that Roberts sides with the liberals on this one, in his moderated old age

Thomas, Alito, Barrett, Kavanaugh, Gorsuch. If it's those five votes, I really think Thomas writes the opinion. If Roberts makes six then I think he writes it.

Personally think Kavanaugh follows Roberts lead here much like the last decision, and I’m not sure where Roberts stands. On one hand Roberts definitely cares about the image of the court more than the other conservatives, on the other he is decidedly against Affirmative Action.

Really comes down to the reasoning Roberts upheld the VRA, since we know this court isn’t opposed to political decision making and he helped the Democrats big time, I’m inclined to believe it was for his hopes of preserving of the institution of the court, but it’s still possible that it was for political purposes either to:

• buy political will to destroy Affirmative Action (though one must wonder if destroying AA means more than destroying section 2 of VRA to Republicans)

or

• appear moderate enough to gain leverage for opposing possible court expansion (the logic being that Republicans value a tipped court more than the 2-4 house seats the VRA decision hands to democrats)

Then there’s the even scarier possibility that the court is trying to buy goodwill (AA ruling will be a glimpse into this) for a future earth shattering decision such as overturning Obergefell or even worse potential rulings.

so essentially:

• if Kavanaugh and Roberts both vote in favor of AA, there is likely an ulterior motive
• if Kavanaugh votes against AA and Roberts for, then Roberts is truly working to preserve the court in spite of the heavy politicization of the institution
• if they both strike down AA than the VRA decision was likely an attempt to seem moderate before striking down AA.

they basically vote together almost always, i think they were on the same side of the judgment 100% of the time last term (even on Dobbs where Roberts didn't vote to overturn Roe he still wanted to uphold the Mississippi law)

but its gonna be harder for Roberts to kind of split the difference here since it will be harder to preserve affirmative action but spank Harvard and UNC than it was to preserve Roe but let the 15 week law stand

One thing I think is that, frankly, while the average person "cares" more about affirmative action than section 2 of the VRA, Alabama winning in Mulligan would have had a way bigger impact than SFFA winning here. California after Prop 209 shows that it's possible to utilize technically race-neutral alternatives that are not really compliant with the spirit of an affirmative action ban (whether one thinks that's good or bad). Meanwhile if Section 2 is gutted, while it would have produced a week of angry articles, the layperson would forget about it relatively quickly compared to the seismic electoral consequences

So if we're looking at Roberts and Kavanaugh as powered mainly by realpolitik for conservative gain, I think that keeping Grutter and essentially overturning Gingles would have made more sense (since it would have preserved more political capital for the Supreme Court while also benefiting conservatives more in aggregate). This makes me think they will be guided more by abstract ideology than political calculations. What exactly that means to them though I can't say