The Supreme Court and the Future of Affirmative Action

By Vinay Harpalani, University of New Mexico School of Law.

On October 1, the U.S. District Court for the District of Massachusetts issued its much anticipated ruling in Students for Fair Admissions (SFFA) v. Harvard.  Almost one year after the trial began, Judge Allison D. Burroughs ruled that Harvard’s race-conscious admissions policy did not violate Title VI of the Civil Rights Act of 1964.  In a 110 page opinion, Judge Burroughs delved thoughtfully into the details of Harvard’s admissions process: the university’s self-studies of this process; its compelling interest in diversity; statistical models put forth by both SFFA and Harvard; and the prospect of using race-neutral alternatives to attain a diverse student body.   She found that Harvard’s policy did not intentionally discriminate against Asian American applicants, and that it was consistent with equal protection guidelines laid out in Grutter v. Bollinger (2003) and Fisher v. University of Texas at Austin II (2016)—guidelines that also apply to Title VI race discrimination.  Judge Burroughs’ opinion provides a meticulous exemplar for future courts that evaluate race-conscious admissions policies.

SFFA is sure to appeal the ruling to the U.S. Court of Appeals for the First Circuit.  Here, the district court’s ruling will likely be affirmed.  It is improbable that the First Circuit will want to reconsider the statistical models presented by SFFA and Harvard and the legal conclusions that Judge Burroughs drew from them.  One question that the First Circuit could revisit is whether Harvard fully considered race-neutral alternatives to attain a diverse student body.  This issue may also well be the focus of future lawsuits intended to eliminate race-conscious admissions policies.  Nevertheless, since Fisher dealt with the issue and Judge Burroughs addressed it thoroughly, a reversal on these grounds is also unlikely.  The precedent here is pretty clear: the “Harvard plan”, with its emphasis on educational benefits of diversity and on holistic admissions, was the basic model upheld in Regents of the University of California v. Bakke (1978) and later affirmed in Grutter and Fisher.

The big question now is whether the U.S. Supreme Court will grant certiorari, since SFFA is sure to appeal subsequently to the High Court.  The Court now has a solid conservative majority on this issue. Three of the Justices—Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas—have previously voted to strike down race-conscious admissions policies; and Justices Neil Gorsuch and Brett Kavanaugh are widely thought to oppose such policies.  Barring an unexpected vote from one of these Justices, a cert grant will likely mean the end of affirmative action in university admissions.  Even if the Court does not abrogate the compelling interest in diversity altogether, it could still require universities to fully exhaust race-neutral alternatives to attain this diversity.  This would make Grutter’s narrow tailoring standard virtually impossible to meet and effectively accomplish the same end.

However, there are a few reasons why the Justices might deny cert.  First, only three years have passed since the Court decided Fisher v. University of Texas II.  Even if the Supreme Court did not hear SFFA v. Harvard until 2023, that would still only be seven years after Fisher II.  In contrast, 25 years passed between the Court’s rulings in Bakke and Grutter, and another decade passed before the Fisher rulings.  Chief Justice Roberts cares about the legitimacy of the Court in the public’s eyes, and revisiting the contentious issue of race-conscious admissions now would likely fuel public perceptions that the Court is not impartial, but merely another political body.  Roberts may prefer that the Court wait a few years to take another case.  If he can convince at least one other conservative Justice that this is the best course, cert would be denied.

Additionally, if they are willing to wait, the conservative wing of the Court can eliminate race-conscious policies in a manner that is arguably consistent with Grutter.  In 2003, Justice Sandra Day O’Connor’s Grutter majority opinion posited that race-conscious admissions policies would no longer be necessary in 25 years—in 2028.  After she retired, Justice O’Connor stated that the 25 year timeframe was merely an aspiration.  However, others, including the late Justice Antonin Scalia and Justice Stephen Breyer, have suggested that this timeframe may be part of Grutter’s holding.  Consequently, the conservative wing of the Court, led by Roberts, could choose to wait until 2028.  They could then vote to end race-conscious admissions and contend that they are not eschewing precedent, but actually following Grutter’s time limit.

By 2028, the political implications of an anti-affirmative action ruling may also be different.  States have been taking various measures, from popular referenda to legislative and executive action, to eliminate race-conscious policies.  Trump’s Department of Justice has initiated investigations of race-conscious admissions policies, putting pressure on universities to curb back these policies.  SFFA has again sued the University of Texas, this time in state court, and it has also has a federal lawsuit pending against the University of North Carolina.  In another decade, there may be a Circuit split on affirmative action, as there was when the Court granted cert in Grutter.  A decade from now, all of these factors would make a ruling against affirmative action appear less politically-motivated and more consistent with precedent and popular will than a cert grant in SFFA v. Harvard.

Whether it happens sooner or later, most experts think that the Supreme Court will strike down affirmative action in university admissions.  Nevertheless, we should remember that the “Harvard plan” has been a resilient doctrine.  Four decades ago in Bakke, it saved affirmative action.  Twenty years ago, many observers predicted that Grutter, along with its companion case Gratz v. Bollinger (2003), would end race-conscious admissions policies.  But Justice O’Connor, who had previously been hostile to such policies, surprised them by embracing the Harvard plan in her Grutter opinion.  Justice John Paul Stevens also gradually changed his views on affirmative action, voting against race-conscious admissions policies in Bakke and then voting in favor of them in Grutter.  And even though Justice Anthony Kennedy dissented in Grutter, he then voted to uphold the Harvard plan in Fisher.

Expert predictions have often been wrong about Supreme Court jurisprudence regarding affirmative action.  Perhaps no major issue before the Court has so repeatedly bucked expectations.  At a time when the Supreme Court has become more conservative than ever, the best hope for proponents of affirmative action is that history keeps repeating itself.


Guest contributor Vinay Harpalani is an Associate Professor of Law at the University of New Mexico School of Law.


Opening the Supreme Court’s New Term

Last Monday, the Supreme Court began its 2019-2020 term. Early in its history, the Court typically had two annual sessions with various starting dates, but since 1917, Congress has set the first Monday of October as the opening of the Court’s annual term.

In 1978, a play that imagined the first woman appointed to the Supreme Court entitled “First Monday in October” opened on Broadway. The play was turned into a film by the same name, which was scheduled for release in 1982.  The release date was moved up to August of 1981 to coincide with the real-life appointment of the first female justice, Justice Sandra Day O’Connor, who joined the Court in September 1981.

A tradition connected with the beginning of the Court’s term is the Red Mass at the Cathedral of Saint Matthew of the Apostle and sponsored by the John Carroll Society. Taking place on the Sunday before the opening of each term for the past 67 years, the purpose of the mass is to bless the attending justices, members of the legal profession, and public officials before the beginning of the new Supreme Court term. The tradition of the Red Mass goes back to medieval Europe and is named for the garments worn by royal judges.  This year, three justices—Chief Justice Roberts and Justices Breyer and Thomas—attended. The record for attendance of Supreme Court justices is six, which occurred in both 2009 and 2012.

While some traditions go back decades, others are just beginning. This Term the Court has implemented a new policy of giving advocates two uninterrupted minutes of argument time before asking questions. Justices in recent years have been in the habit of allowing lawyers only a few seconds before interrupting them with questions. The new policy will allow lawyers to know they will have at least two minutes to craft their opening statements. In the first argument under this new policy, Justice Ginsburg wasted no time and asked the first questionof the day as soon as the white light signaled the introductory two minutes had expired.


This Post was Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


Title VII’s Day at the Supreme Court

The Supreme Court today hears two cases that consider whether Title VII of the 1964 Civil Rights Act prohibits sexual orientation discrimination in the workplace and a third case that considers whether Title VII prohibits discrimination against transgender people.

Bostock v. Clayton County involves a man who was fired from his job as a child welfare services coordinator because he was gay. The U.S. Court of Appeals for the 11th Circuit rejected Gerald Bostock’s claim and held that Title VII—which prohibits discrimination “because of … race, color, religion, sex, or national origin”—should not be read to include sexual orientation as a protected class. Altitude Express v. Zarda involves a skydiving instructor named Donald Zarda who was also fired because he was gay. (Zarda died in 2014; his case is being carried on by executors of his estate.) The U.S. Court of Appeals for the 2nd Circuit came to the opposite conclusion from the 11th Circuit and ruled that Title VII’s prohibition on sex discrimination included discrimination based on sexual orientation.

The core of Bostock’s and Zarda’s argument for why sexual orientation discrimination violates Title VII is that their sex was ultimately the reason for their termination. If either had been female and had expressed sexual interest in men, reason their lawyers, then they would not have lost their jobs. Therefore, they were fired “because of … sex,” in violation of Title VII.

Both also point to the decision Oncale v. Sundowner Offshore Services, Inc., in which the Supreme Court unanimously held that Title VII could be read to prohibit same-sex sexual harassment even if the drafters of the law did not envision it applying to same-sex discrimination. “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” Justice Antonin Scalia wrote in the opinion for the Court, “and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

The third Title VII case the Court hears today is R.G. & G.R. Funeral Homes v. Equal Employment Opportunity Commission, which involves a claim by Aimee Stephens, who was fired by her employer after undergoing sex-reassignment surgery and identifying as a women. A federal district court ruled that Title VII does not prohibit discrimination based on gender identity, but the Court of Appeals for the 6th Circuit reversed.

Stephens’ argument is similar to that of Zarda and Bostock in that she argues her employer would not have fired her if she was assigned the sex of female at birth and therefore she was subject to discrimination because of her sex. She also argues that she was fired because of her inability to conform to her employer’s assumptions about gender roles, which is prohibited under the Supreme Court’s ruling in the 1989 case Price Waterhouse v. Hopkins.

The Title VII cases are among the most closely watched cases of the new term. Over two hundred large U.S. companies, including Amazon, Bank of America, Northrup Grumman, and Dow, filed a joint amicus brief in favor of adopting sexual orientation and transgender identification as a protected class under Title VII. The brief warns that failing to do so would cause “wide-ranging, negative consequences” on many U.S businesses.

Currently, over half the states have no laws protecting against discrimination based on sexual orientation and gender identity.


This Post was Written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by  ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Constitution Day Event: Political Polarization and Constitutional Interpretation

As we prepare to celebrate Constitution Day later this month, the founding document is as hotly debated as ever. Throughout history, different parts of the Constitution have taken on political significance at different times. Today, debates about the Constitution are intertwined with polarization and division among the public and within democratic institutions such as Congress and the courts.

In celebration of Constitution Day, Chicago-Kent College of Law is having a panel discussion, “The Constitution and Political Polarization” on Wednesday, September 18 from 3-4 p.m. in Room 590.

The panel will include Chicago-Kent faculty members:

Professor Steven Heyman 

University Distinguished Professor Mark Rosen

Professor Christopher Schmidt, Co-Director of the Institute on the Supreme Court of the United States

Associate Professor Carolyn Shapiro, Co-Director of the Institute on the Supreme Court of the United States

The event is free and open to the public. We hope you can join us for what promises to be a lively and interesting discussion.

On this day in Supreme Court History—April 10, 1869: Getting to Nine

On this day in 1869, Congress increased the number of justices on the Supreme Court from seven to nine—where it has remained ever since. (Whether the number should remain at nine has been a point of renewed attention in recent months.)

In 1866, Congress had reduced the number of Supreme Court justices to seven. Republicans who controlled Congress were battling President Andrew Johnson (a Democrat who had assumed office when Lincoln was assassinated), and they sought to deny Johnson any appointments to the Court. By 1869, Ulysses Grant, a Republican, had replaced Johnson, and Congress expanded the number of justices. Senator Lyman Trumbull sponsored the Judiciary Act of 1869, which, in addition to setting the number back to nine, also required six justices to form a quorum. President Grant signed the legislation and then nominated William Strong and Joseph Bradley to the newly restored seats.

The Act contained other notable provisions. It allowed all federal judges (including Supreme Court justices) to retire with full salary after serving for at least 10 years, provided they had turned 70. Previously, federal judges had no incentive to leave the court before their death, as the government offered no retirement benefits. The Act also created separate circuit judges for the circuits, and it allotted each Supreme Court justice one of the nine circuits in which that justice had to attend at least one term in each of the circuit’s districts every two years.

This Post was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


On this day in Supreme Court History—March 3, 1801: The Midnight Judges

On this date in 1801, John Marshall—at the time simultaneously serving as President John Adams’s Secretary of State and Chief Justice of the United States—signed the commissions of the “midnight judges,” setting in motion events that would lead to the landmark Supreme Court case Marbury v. Madison. The ruling, written by none other than Chief Justice Marshall, gave the Court its first opportunity to strike down an act of Congress and thereby established the practice of judicial review or the power of the Court to declare laws unconstitutional.

Among these last-minute appointments was William Marbury, whom President Adams appointed as a Justice of the Peace for the District of Columbia. Adams’s intentions were clear: he sought use the closing days of his administration to push through as many federal judges and other appointees as he could before President Thomas Jefferson, who defeated him the previous November, took  office. When President Jefferson took office on March 4, he refused to deliver the commissions of the midnight judges. Marbury petitioned the Supreme Court to order Jefferson’s Secretary of State, James Madison, to deliver his commision and finalize his appointment.

In his opinion of the Court, Marshall held that Marbury had come to the wrong court. The Constitution, he concluded, allowed the Supreme Court “original jurisdiction” in only a limited number of specified situations, and they did not include the kind of order Marbury asked for. Since Marbury was only following the guidelines of a provision of the Judiciary Act of 1789, Marshall concluded that this provision was unconstitutional. Jefferson denounced the Court’s bold assertion of its own authority to strike down an act of Congress, but Marshall had given him nothing to defy, since it was the Court itself that was refusing the grant of power in the Judiciary Act. It was a brilliant move on Marshall’s part, and the ruling proved a critical foundation for the expansion of the Court’s authority in the coming years.

This Post was Written by ISCOTUS Fellow Clayburn Arnold, Chicago-Kent Class of 2021, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


Tuesday Oral Argument Report

On Tuesday, February 19, the Court heard oral arguments in Return Mail, Inc. v. USPS. The issue in the case is whether, under the America Invents Act (AIA),  the government is a “person” who can petition the United States Patent and Trademark Office to review patent validity. Return Mail, the petitioner, owns a patent involving the processing of undeliverable mail items due to incorrect or obsolete addresses for the intended recipient. After Return Mail unsuccessfully attempted to license the patent to the US Postal Service, Return Mail filed suit against USPS alleging “unlicensed and unlawful use and infringement of the patent.”

In response, USPS filed a petition to the Patent and Trademark Office’s Patent Trial and Appeal Board asking for the Board to void the patent. Return Mail countered that USPS lacked statutory standing to establish any review proceedings under the AIA. Return Mail argues that the AIA intended a meaning of “person” that excludes the government and therefore government agencies cannot initiate AIA review proceedings. USPS contends that historical evidence and Supreme Court statements show that Congress intended to include government agencies as a person, at least in the context of the AIA. The United States Court of Appeals for the Federal Circuit held that “person” under the AIA did not exclude government agencies and therefore the government could petition for a patent review. Return Mail is appealing that Court of Appeals decision.

Oral argument was lively, with Justice Ginsburg, back on the bench for the first time since undergoing cancer surgery, asking the first question. It was hard to tell from oral argument which way the Court is likely to come out in the case. Recaps of oral argument can be found at SCOTUSBlog and  IPWatchdog has a

This Post was Written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


On this day in Supreme Court History—February 18, 1988: Justice Anthony Kennedy Takes the Oath of Office

On this day in 1988, Justice Anthony Kennedy was sworn in as the 104th Justice of the Supreme Court.

President Ronald Reagan nominated Kennedy as an Associate Justice on November 12, 1987. Kennedy was Reagan’s third attempt to fill the seat of Justice Lewis Powell, who had retired the previous June. Reagan’s first two nominations failed: Judge Robert Bork was rejected by the Senate; and then Douglas Ginsburg withdrew his name from consideration after revelations involving his use of marijuana. In nominating Kennedy, Reagan said that Kennedy, who had been serving on the U.S. Court of Appeals for the Ninth Circuit since 1975, ”seems to be popular with many senators of varying political persuasions.” Reagan’s assessment proved correct. The Senate confirmed Kennedy by a vote of 97-0 on November 30, 1987.

On February 18, 1988, Chief Justice William Rehnquist administered the judicial oath (required of all federal judges) to Justice Kennedy in the Supreme Court chamber. Justice Kennedy then took his seat on the far right side of the bench, reserved for the most junior member of the Court. Later that day, the Chief Justice gave Justice Kennedy his Constitutional Oath of Office (required of all federal employees) at a White House ceremony.

At the White House ceremony, Reagan gave a brief speech, after which Rehnquist gave brief remarks thanking the president for holding the ceremony at the White House. After Rehnquist administered the oath, Justice Kennedy gave a speech thanking the President and the Chief Justice. “The presidency, the Congress, and the courts,” Kennedy said, “are committed to the constitution and to the rule of law, and to the heritage of freedom.” In his concluding remarks, Reagan said that Kennedy’s career, like that of Justice Powell’s, “has been marked by his devotion to a simple, straightforward, and enduring principle: that we are a government of laws, not of men.”

Kennedy served on the Court until his retirement on July 31, 2018.

This Post Was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


On this day in Supreme Court History—February 15, 1932: Benjamin Cardozo Nominated to the Supreme Court

On this day in 1932, President Herbert Hoover nominated Benjamin Cardozo to the Supreme Court.

Hoover, a Republican, nominated Cardozo, a Democrat, to replace Oliver Wendell Holmes, Jr., who had retired at age 90. Although Cardozo was a Democrat, he had support from across the political spectrum. Cardozo had served for 18 years on the New York Court of Appeals, first as an Associate Judge and then as Chief Judge, and his reputation had grown nationwide. Cardozo had written several respected books, including his 1921 classic The Nature of the Judicial Process. He had also received honorary degrees from numerous universities, including Harvard, Yale and Colombia, his alma mater, where he entered the undergraduate school at age 15, graduated at the top of his class, and then attended, but did not graduate from, the law school.

Although the brilliant jurist had few critics, some felt Hoover could have been more strategic in his nomination. Cardozo was from New York, and two other New Yorkers—Harlan Fiske Stone and Charles Evans Hughes—were already on the Court. Justice Louis Brandeis, the first Jewish justice, was still on the Court.

Yet Cardozo had two powerful Republican Senators on his side: William Borah of Idaho, chairman of the Foreign Relation Committee, and George Norris of Nebraska.

Hoover talked to Borah the day before his announcement. The President showed Borah a list of potential nominees in descending order of Hoover’s preference. Hoover had misspelled Cardozo’s name at the bottom, along with the three qualities that he considered strikes against him: “Cardoza [sic] –Jew, Democrat, New York.” Borah glanced at it, and, believing Cardozo should be at the top, told Hoover, “Your list is alright, but you handed it to me upside down.”

Borah reportedly told Hoover, “Cardozo belongs as much to Idaho as to New York,” and “geography should no more bar the judge than the presence of two Virginians—John Blair and Bushrod Washington—should have kept President Adams from naming John Marshall to be Chief Justice.”  As for Cardozo’s being a Jew, Borah reportedly told Hoover, “Anyone who raises the question of race is unfit to advise you concerning so important a matter.”

The Senate Judiciary Committee unanimously approved Cardozo’s nomination on February 20, and the full Senate unanimously confirmed his nomination by voice vote, without debate or roll call, four days later.

Two days after his confirmation, Cardozo sent a handwritten note to Justice Holmes: “I know, of course, that I can never fill your place, but if fills me with pride and joy to be told that you are satisfied to have me there.”

Justice Cardozo took his oath of office March 14, 1932. He served until July 9, 1938.

This Post Was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


Court Stays Louisiana Abortion Law

A Louisiana law, the Unsafe Abortion Protection Act (Act 620), has been blocked by the Supreme Court. Passed in 2014, the law would prohibit a physician from performing an abortion if the physician was not admitted to practice at a hospital within 30 miles of the location at which the abortion is performed. Two Louisiana physicians filed an emergency stay request to prevent the law from taking effect. Critics of the law provide that this would leave the state, which has nearly a million women of reproductive age, with only one doctor in a single clinic eligible to perform abortions.

Act 620 has been blocked since its enactment and is nearly identical to a Texas law which the Court struck down in Whole Woman’s Health v. Hellerstedt on a vote of 5-3. In the decision, the Court held the Texas law “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.” Justice Kennedy sided with the liberal justices on the bench to cast the critical fifth vote.

A panel of the U.S. Court of Appeals for the 5th Circuit upheld the Louisiana law on a 2-1 vote. The full court, which is considered one of the most conservative of the appeals courts, voted not to reconsider the decision of the panel on a 9-6 vote. Four of the nine judges who case the vote to allow the panel’s opinion have been appointed by President Trump. In distinguishing this law from Hellerstedt, the panel reasoned that a majority of abortion providers in Louisiana did not make a “good faith” effort to obtain admitting privileges, which are easier to obtain in Louisiana than in Texas. One of the dissenting judges stated the judges in the majority relied on “strength in numbers rather than sound legal principles to reach their desired result in this specific case.”

The Supreme Court, in a 5-4 vote, granted the stay with Chief Justice John Roberts siding with the Court’s liberals. However, as CNN Reports, the order will not prevent the Court from possibly taking up the case in the future. In dissent, Justice Kavanaugh argued that the stay is premature and unnecessary, as the law had a built-in 45 day “transition” period to see the law’s impact.

Check out The Washington Times, Fox News, NBC News, and The Washington Post for more information on the order.

This post was written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.