Conservative justices seem to like precedent this time around

A barrister for affirmative action opponents, Patrick Strawbridge, kicked off his case on Monday with a heavy-handed call for the High Court to get rid of grutter. Calling the decision “seriously flawed”, Strawbridge said the use of race in admissions should never be allowed.

“This Court should strike it down,” Strawbridge said.

However, judges Brett Kavanaugh and Amy Coney Barrett didn’t seem very interested in this approach. They went out of their way to suggest on Monday that whatever the High Court does on affirmative action be in line with past rulings, not overrule them.

Their prospects were remarkable since Barrett and Kavanaugh joined the five-judge majority that overturned 49 years of law that provided a legal guarantee of abortion access in the United States.

Since the publication in June of the decision of the court of Dobbs v. Jackson Women’s Health Organizationcritics accused the judges who signed the ruling of ignoring the broad tradition of respect for precedent embodied in the principle of stare decisis.

Both Kavanaugh and Barrett joined Justice Samuel Alito’s majority opinion in Dobbs concluding that Roe vs. Wade “was patently wrong from the start”, so it wasn’t worth keeping on the books.

Opponents of affirmative action seek an equally definitive repudiation of precedent on this issue, but Kavanaugh and Barrett didn’t seem to think it was necessary in the Harvard and University of North Carolina admissions cases.

“The recent Dobbs The ruling was in the air today, both as lawyers backing affirmative action cited precedent and as Tory justices noted that ending race-based admissions was consistent with Grutter against Bollingerexpects that in 25 years – from 2003 – the use of racial preferences will no longer be necessary,” said Curt Levey of the conservative legal group Committee for Justice.

Indeed, Barrett and Kavanaugh focused Monday on enforcing precedent, not overturning it, arguing that Judge Sandra Day O’Connor’s unusual appeal two decades ago in grutter for affirmative action in education to be phased out in 25 years must be respected.

“We’re not 25 yet, are we?” said Barret. “So if he has his own self-destruct mechanism where he says, ‘Hey, grutter says we have to stop because they just don’t work, ‘do we have to give more time? »

“The majority opinion of Justice O’Connor was concerned about the indefinite extension. … How will we know when the time has come? Kavanaugh asked.

When Solicitor General Elizabeth Prelogar pleaded with the justices not to upset existing precedents for affirmative language, she also did not mention the court’s decision on abortion, but her carefully chosen language echoed the debate. on this decision.

“I think the court shouldn’t make the destabilizing decision to overturn the precedent here,” Prelogar told the judges. “It would have these destabilizing ramifications in just about every major industry in America.”

Concretely, the incremental approach that Kavanaugh and Barrett signaled on Monday may not give race-based admissions practices much more than a temporary reprieve. Kavanaugh even toyed with the idea that a High Court ruling next year could be seen as ending affirmative action before O’Connor’s deadline since the crop of students admitted the next fall will graduate in 2028.

Another barrister who has opposed race-conscious admissions practices at the High Court, Cameron Norris, has called for a similar analysis. He said that two decades of experimentation with such policies since grutter showed that they did not turn off on their own as O’Connor hoped.

“I think 20 years is enough to call it,” Norris said.


Politico

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