Kagan on Harvard/UNC cases’; Coach Kennedy update; and more

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From NRO’s Bench Memos:

What Will Kagan Do in Harvard/UNC Cases?

By ED WHELAN

October 27, 2022 8:41 AM

Last Friday, Justice Elena Kagan expressed an interest in having the Court “get back to finding common ground, to ratcheting down the level of decision-making so we can reach compromises.” I can’t say that I recall her displaying such an interest when she has found herself part of a majority reaching a result she embraces—e.g., the sweeping 5-4 ruling in Obergefell v. Hodges (2015) inventing a constitutional right to same-sex marriage. Her interest instead seems opportunistic—a ploy to entice a coalescing majority to narrow or muddle a ruling in exchange for her jumping on board.

With oral arguments in the Harvard/UNC racial-preferences cases just four days away, I wonder what Kagan’s strategy might be to minimize the potential impact of the rulings in the cases. She is a lot savvier than I am, so I don’t have a lot of confidence in my ability to speculate, but I’ll give it a go.

Let’s consider some of the options:

1. Might Kagan prefer to see the meaning of Title VI decoupled from the Equal Protection Clause so that the Court in both cases would rule only that Harvard and UNC have violated Title VI? I’ve argued that the strong version of stare decisis that ordinarily applies to statutory precedent shouldn’t apply to the Court’s egregiously wrong misreading of Title VI, so I think that there is plenty of room for the Court to revisit Title VI and to rule against Harvard and UNC based on what even Justice John Paul Stevens (in Regents of University of California v. Bakke (1978)) recognized to be its “crystal clear” meaning.

From Kagan’s perspective, the upside of such a ruling is that Grutter v. Bollinger would be untouched as precedent on the Equal Protection issue and that Congress therefore might be free to amend Title VI to allow the use of racial preferences. I would be very happy to see the Court rule on the basis of Title VI’s actual meaning. I would also welcome any political battle in Congress over amending Title VI. But despite her rhetoric of “ratcheting down the level of decision-making so we can reach compromises,” I doubt that Kagan would see it as advantageous to have the Court pursue this path. I also doubt that she could bring herself to rule against racial preferences in admissions.

2. As Justice Powell explained in his Bakke opinion, when the Court heard oral argument in 1977 “the parties [had] neither briefed nor argued the applicability of Title VI,” so the Court requested supplemental briefing on the issue. Here likewise, the parties haven’t challenged Grutter’s unreasoned and cursory holding that Title VI has the same meaning as the Equal Protection Clause, and they have directed all of their argument to the Equal Protection issue. Might Kagan see an upside to pushing for supplemental briefing, even if she isn’t sure that she would want to reconsider the Title VI holding?

One possible upside from her perspective might be fostering a schism among the conservative justices and perhaps generating a ruling that (much like Bakke) doesn’t have an actual majority for any holding. But there is little reason to think that a justice who would prefer to rule against Harvard and UNC on Title VI grounds wouldn’t also join a ruling against them on Equal Protection grounds if that were necessary to form a majority holding.

Another possible upside would be simple delay. But given how early in the term these cases are being argued, there is no reason to think that supplemental briefing would push a decision past the end of the term (i.e., end of June).

3. Might Kagan try to foster a ruling that Harvard and UNC have (as SFFA argues) failed to comply with Grutter and that it is therefore unnecessary to decide whether to overrule Grutter? Again, I’m very skeptical that Kagan would be willing to rule against racial preferences in admissions, no matter how narrow the ruling. Even if she were open to that, any appeal in this approach would depend very heavily on how the majority opinion was actually written. The more that the majority tried to give Grutter’s nominal strict scrutiny some real teeth, the less inclined Kagan would be to join. And it seems unlikely that a majority of justices would settle for some sort of nominal defeat for Harvard and UNC (e.g., a directive to consider race-neutral means of achieving diversity).

4. Might Kagan, along the lines of Yale law professor Justin Driver’s proposal, urge the Court to sunset racial preferences in 2028, consistent with Justice O’Connor’s stated expectation in Grutter that racial preferences would be unnecessary in 25 years? Kagan might well accept such a compromise, but there is no reason why any conservative justice should.

5. The only remaining option I see strikes me as the most likely one. Kagan might well decide that her only choice is to try to intimidate her colleagues into not overruling Grutter and to make them pay a political cost for doing so. I doubt very much that an intimidation campaign will succeed, and, given the broad unpopularity of racial preferences in admissions, any justice who considers the political fallout of decisions has little reason for concern.

Coach Kennedy to Be Reinstated

By ED WHELAN

October 27, 2022 9:07 AM

A month ago, a Seattle Times columnist falsely insinuated that Coach Joe Kennedy, who won a big First Amendment victory in June in Kennedy v. Bremerton School District, had no interest in getting his coaching job back. The claim was part of a broader campaign of smears and distortions that the Left has waged against Coach Kennedy and his lawyers and against the Supreme Court majority.

Vindicating my account that Coach Kennedy has been looking forward to resuming his coaching duties, ABC News reports that the Bremerton School District and Kennedy have agreed that Kennedy will be reinstated as assistant coach of the Bremerton High School football team some time between now and mid-March 2023. (A school-district spokesman says that there remain some issues to resolve.)

This Day in Liberal Judicial Activism—October 27

By ED WHELAN

October 27, 2022 8:00 AM

2020—A divided Ninth Circuit panel rules (in  Cortesluna v. Leon) that the district court wrongly determined that a police officer was entitled to qualified immunity on a claim that he used excessive force in making an arrest. The majority concludes that “existing precedent squarely governs the specific facts of this case,” but Judge Daniel P. Collins in dissent observes that the facts in that supposedly precedential case are “materially distinguishable from this case”: “There is a very significant difference between using a knee to hold down a person who is suspected of a serious violent crime who is armed with a knife (as in this case) and using a knee to hold down a noisy neighbor armed with nothing more than a sandwich (as in [the precedent cited by the majority]).” 

In October 2021, the Supreme Court, citing Collins’s dissent with approval, will summarily reverse the Ninth Circuit ruling. 

M. Edward Whelan III
Distinguished Senior Fellow and

Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
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