June 7, 2013

There's more than one Fisher speculation in the sea

By Jonathan Wood Attorney

Over at PrawfsBlawg, Prof. Will Baude asks why the Supreme Court is taking so long to decide Fisher. As readers know, the case challenges the University of Texas’ use of racial preferences in its admission process. PLF filed a brief in the case, and has blogged extensively on it. The case was argued at the beginning of the term, back in October. Since 2008, the Court has decided every case argued in that month by the end of April. So the fact that Fisher is still pending in June is noteworthy.

Leaks from the Supreme Court are incredibly rare, so no one has any inside information on why it is taking so long. But that isn’t preventing speculation. Some of the more interesting hypotheses are that the case is taking so long because the vote resulted in a tie [Justice Kagan recused, opening up the possibility of a 4-4 vote], the case is going to be held over for reargument next term along with Schuette, or one or more justices have changed their minds, as the Chief Justice is widely rumored to have done in last term’s Obamacare case.

Prof. Baude offers another alternative:

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.)

The Court is expected to issue more opinions on Monday, so perhaps we will have our answer soon.

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