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Friday, June 07, 2013

Where's Fisher?

With the Supreme Court's announcement that it will move to issuing opinions twice a week, it is fair to say we're hitting the final stretch of the term.  And it's moderately interesting that the Court has not yet issued its opinion in Fisher v. University of Texas.  Yes, the case is a big and controversial one, and its common for those cases to take a long time to come out.  But it was argued in October, and the Court usually has all of its October opinions out long before June, no matter how controversial they are.  (OT 2011's last October opinion: April 2; OT 2010's last: March 29; OT 2009's: April 28; OT 2008's: April 21.)

So what's taking so long? Keeping in mind the high likelihood that the majority opinion was assigned to Justice Kennedy, and that the argument appeared to favor petitioner, I have four hypotheses for the delay:

  1. Just slow going.  Perhaps the majority opinion is just very long, with a very long lead dissent assigned to a justice who writes pretty slowly.  This is possible, of course, but the delay is sufficiently unusual that I think it's likely something more is going on.

  2. Changing the course.  Perhaps there has been a substantial change in the opinion during the course of drafting-- quite possibly by Justice Kennedy himself. The two most obvious possibilities would be 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.  I continue to think that both of these hypotheses are wrong, and that the case will be reversed on narrow-tailoring grounds that purport to leave Grutter intact, but I no longer have as high a degree of confidence in that prediction.

  3. Reinforcements.  Justice Kennedy's majority opinions usually avoid getting into extensive fisticuffs with the dissent.  Perhaps, after reading the dissent, another justice in the majority has decided to write a responsive concurring opinion that responds in detail to all of the dissent's claims.  (My nominee for such an opinion would be Justice Alito, perhaps in a reprise of the Alito/Kennedy division of labor in Ricci v. DeStefano.)  This adds significant time because the concurrence doesn't even get started until after the dissent has circulated, and there can also be a ton of last-minute revisions.

  4. Originalism.  Justices Thomas and Scalia have never provided very much of an explanation for how their view that the 14th Amendment requires symmetrical colorblindness is consistent with the Amendment's original meaning.  There are plausible arguments available to them, as Mike Rappaport has recently shown, but they haven't talked about them much.  Perhaps one of them has finally decided to get into the issue, perhaps after being provoked by some comments in the dissent.  (My nominee for such an opinion would be Justice Thomas, perhaps in a reprise of some of his famously long separate opinions like Holder v. Hall or U.S Term Limits v. Thornton.)

Of course it's very hard for those outside the building to correctly guess what's going on inside.  (Mark Walsh has a few more hypotheses about the delay here.) But I suppose that before my guest-blogging stint is up, we shall see.


Posted by Will Baude on June 7, 2013 at 09:00 AM in Constitutional thoughts, Judicial Process | Permalink


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That possibility is zero.

Posted by: William Baude | Jun 9, 2013 9:40:54 PM

Not even going to mention the possibility they'll let it slide into next term for a rehearing paired up with Schuette eh?

Posted by: Daniel Schick | Jun 9, 2013 6:55:56 PM

The absence of a leak on Fisher is also very unusual. Based on last Term, I would have expected a few Jan Crawford stories by now.

Posted by: Orin Kerr | Jun 7, 2013 11:48:47 AM

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