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Monday, June 24, 2013

So Where WAS Fisher Anyway?

Two weeks ago I posted some hypotheses about why it was taking the Supreme Court such an unusually long time to publish the opinion in Fisher v. Texas, its last October case.  Now that the opinion is out, we have some good reason to think that all of my hypotheses -- at least when I got down to specifics -- were wrong.

1:  I suggested a "very long" majority and a "very long" lead dissent.  Well, Justice Kennedy's majority opinion is 13 pages; the dissent is 4.  So much for that theory.

2: I suggested that there had been some kind of major "flip" in the case -- in particular that "Justice Kennedy initially decided to invalidate Texas's program but has now decided to uphold it (I doubt it), or that Justice Kennedy had initially decided to preserve Grutter but has now decided to overrule it."  But no, the final opinion invalidates Texas's program the Fifth Circuit's opinion on the narrow, Grutter-based grounds I had expected all along. [EDIT: Thanks for the correction, Micah!]

3:  I suggested that another justice might have written a long concurring opinion getting into a nasty back-and-forth with the lead dissent.  But Justice Ginsburg's lone dissent is only four pages long, and it did not provoke substantial writing from anybody.

4:  Finally, I suggested that Justice Thomas might write a long concurring opinion getting into the original meaning of the 14th Amendment and finally providing a judicial explanation for how the colorblindness rule that Scalia and Thomas subscribe to (and sometimes derive from Brown) can be squared with the original history of the 14th Amendment. 

This one came the closest -- Justice Thomas did write a long concurring opinion -- but it's not nearly long enough to explain the unusual delay, and even more puzzlingly, it doesn't discuss originalism in any serious detail.  There's a brief mention of slavery, and otherwise all of the originalist heavy lifting is delegated to a page-long discussion of the Iowa Supreme Court's previously obscure 1866 decision in Clark v. Board of Directors.  (The case is cited in the briefs and Brown and Sweatt, which is probably how it made its way into the concurrence, although it is also cited in Michael McConnell's Originalism and the Desegregation Decisions and Chris Green's Originalism and the Sense-Reference Distinction, either of which I could imagine Justice Thomas's reading.)

So what did happen?  Obviously my own reliability at guessing is subject to serious question.  But my new guess is that there was a long struggle to get five Justices to join a single opinion.  From Justice Scalia's and Thomas's concurrences, I wouldn't be surprised if they initially refused to join an opinion that seemed to reaffirm Grutter.  At the same time, I wouldn't be surprised if Justices Breyer and Sotomayor initially refused to join an opinion that seemed to narrow Grutter. 

Justice Kennedy could have simply written an opinion for 3 and relied on the Marks Rule to make it the controlling precedent for lower courts, but there's something unsatisfying about that, especially in a high-profile case.  So maybe he had to spend a while trying to get two more votes from either his right flank or left flank (and ultimately got more than he needed by writing a short and relatively unobjectionable opinion).  There's plenty about this theory that I haven't fully fleshed out, but that's my new best guess, since I doubt it took eight months for Justice Thomas to write 20 pages.  But obviously you shouldn't take my word for it!

Posted by Will Baude on June 24, 2013 at 03:26 PM in Constitutional thoughts, Judicial Process, Life of Law Schools | Permalink


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I have heard a lot of speculation on why it took so long, but so far your's sounds the most plausible to me.

Posted by: Bruce D. | Jun 25, 2013 2:10:11 PM

I see. And actually, thinking a little more, the en banc math has moved a bit because Pete Benavides has also gone senior. So the "no" vote on en banc has lost two (Garza and Benavides) and gained only one potential vote (Higginson). Anyway, we'll see - I suspect the big court will have the final say.

Posted by: Raffi | Jun 24, 2013 7:33:07 PM

Mike Sacks thinks Higginbotham might change. https://twitter.com/MikeSacksHP/status/349304567290277889 That seems plausible to me, though I don't really know, and you probably have a better sense than I do. Anyway, we'll see . . .

Posted by: William Baude | Jun 24, 2013 7:17:52 PM

Will - Thanks. But then it will be 2-1, no? I have no inside knowledge here, but I find it difficult to believe Higginbotham and King would change their minds based on today's opinion.

Posted by: Raffi | Jun 24, 2013 6:48:16 PM

Raffi, 1: she'll be recused. 2: Mike Sacks points out on Twitter that Judge Garza appears likely to change position on remand, given what he said at the time: https://twitter.com/MikeSacksHP/status/349248033541726208

Posted by: William Baude | Jun 24, 2013 6:39:38 PM

Is Justice Kagan un-recused if the case comes back? I mean, I suppose she can do what she wants, but what would your guess be? Because I have a feeling the CA5 panel is going to reaffirm what they said earlier.

Posted by: Raffi | Jun 24, 2013 5:31:58 PM

One theory: The original Kennedy opinion invalidated the UT plan on narrow tailoring grounds based on the conclusion that the 10% plan was a race-neutral alternative that achieved the benefits of diversity, RBG wrote a dissent that hit the majority hard on whether the 10% plan was race-neutral, Breyer offered to join an opinion that said good faith isn't enough for narrow tailoring, and Kennedy went that route (with RBG revising her dissent). That would explain why RBG focused on the what-is-race-neutral issue in her brief dissent, even though Kennedy didn't. But I'm just talking out of my tooches here.

Posted by: Sam Bagenstos | Jun 24, 2013 5:16:28 PM

Your speculation strikes me as the best guess we can make based on what we know. But it's still a bit of a puzzle.

Posted by: Orin Kerr | Jun 24, 2013 5:13:56 PM

Good catch! I would have said that they reversed the Fifth Circuit, although it is technically a vacatur (the technical difference between the two I have never understood). I've fixed the post. In any event, I was still wrong. :)

Posted by: William Baude | Jun 24, 2013 4:03:48 PM

"But no, the final opinion invalidates Texas's program on the narrow, Grutter-based grounds I had expected all along."

Except that the final opinion doesn't invalidate the Texas program.

Posted by: Micah | Jun 24, 2013 3:55:11 PM

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