I've known Michael Rosman at the Center for Individual Rights for almost 30 years; he has litigated many important cases, including with regard to racial preferences, and was one of the lawyers in Grutter v. Bollinger. I'm therefore delighted to pass along his short reactions to Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC, focused on the Court's opinion and the concurrences; all the remaining text of the post is Michael's:
- A Tribute: My first thought was of Will Consovoy, the great attorney who led the charge in these cases and who died at a young age before he could see them come to fruition. The outcome is a tribute to him—as well as the great firm he helped create (Consovoy McCarthy), the oral advocates (Patrick Strawbridge and Cameron Norris), Ed Blum, who helped put the cases together and kept them afloat, and all of the many attorneys who worked for so many years on them.
- Grutter Is Gone: I agree with Justices Thomas and Sotomayor that the Court essentially overruled Grutter. The most obvious (but not the only) support for this is the Court's description of the rule against using race as a "negative." First, the Court did not say that in Grutter or, as far as I can tell, in any other race-conscious affirmative action case, although it seems obvious that invidious discrimination is unconstitutional. As support, the Court's opinion cites a part of the Grutter decision that precludes race-conscious decisions from "unduly burdening" others, which strikes me as a different concept. And this becomes crystal clear when the Court holds that using race positively for members of one race is tantamount to using it as a "negative" for all others in any zero-sum game. (Slip op. 26.) Which I think would apply to virtually all kinds of race-conscious decision-making, both within higher education and without.
- So, the conclusion I draw is that the Court did not explicitly overrule Grutter because it did not want to directly address Justice Sotomayor's substantial stare decisis arguments.
- The Missing Race?: The creation of a new "negative" requirement allowed the Court to sidestep one of the trickier issues in the cases. In the Harvard case, plaintiff had argued that Harvard had discriminated against Asians in the sense that, as a group, Asians were treated even worse than whites. (As a group, Asians had lower "personal ratings" than whites.) The district court had concluded that Harvard had not discriminated against Asians. Perhaps not wanting to wade into whether the district court abused its discretion in that holding, the Supreme Court never mentioned the issue.
