FedSoc Blog

The San Francisco Mercury reports:

On a May day in 2009, Vaughn Walker was going through one of his weekly routines as a federal judge, reviewing a stack of new lawsuits assigned to his San Francisco chambers, when one case caught his eye: Perry v. Schwarzenegger. . . .

But it did not take long for the veteran chief judge, himself quietly but openly in a longtime gay relationship with a doctor, to realize that he had inherited the legal challenge to Proposition 8, California's ban on same-sex marriage. The silver-haired judge with the iconoclast's reputation would be center stage in the gay marriage controversy.

"That's when I had the —'Oh (my)' moment," Walker told this newspaper during an interview last week, recalling that he was already mulling retirement when the lawsuit landed on his desk. . . .

Walker wasn't always so sure the Proposition 8 case would reach the Supreme Court, although he prepared from the outset for that possibility. He notes that the gay marriage debate was at a different juncture in 2009 -- few states had legalized same-sex marriage (nine do now), and President Barack Obama was still several years away from backing same-sex marriage rights in the courts.

"It was a different time, and the Supreme Court doesn't always get out in front of public opinion," Walker said. "Not that many cases go to the Supreme Court."

Over the objections of Proposition 8 backers, Walker ordered a full trial to establish a complete record on the arguments from both sides, aware the higher courts would review whatever he decided. "If you are going to have an issue that deals with a significant constitutional matter, it pays to have some facts that are established the old-fashioned way," he said.

But, to Walker's surprise, after lawyers for same-sex couples put on a parade of witnesses, gay marriage foes put on scant evidence, offering just two witnesses, including one who later came out in favor of same-sex marriage rights. "I did think the proponents of Proposition 8 would put on a case," Walker said.

"It never occurred to me that they would ... ," and his trademark baritone trails off. Walker asks for the correct baseball term for taking a swing and a miss at a pitch and then just shrugs.

Walker is matter-of-fact about the eventual fallout from declaring Proposition 8 unconstitutional. As he told the Commonwealth Club recently, he believes same-sex marriage is "an idea whose time has come," and he sticks by that belief.

But for his view, Walker has faced withering criticism from conservative and religious foes of same-sex marriage who attacked his fairness in deciding the case while in a long-term same-sex relationship. Even though Walker notes that his sexual orientation had been an open secret in the Bay Area legal world for about a decade before the Proposition 8 case, he was not entirely surprised when the issue surfaced.

"At the outset of the case, I wondered whether my personal situation would become an issue," he said.

Proposition 8 lawyers tried, unsuccessfully, to set aside Walker's ruling, arguing the judge was biased and should have disclosed the relationship before trial. Walker makes no apologies for that decision, saying it would be a dangerous precedent for all federal judges. The bias argument, he adds, was the Proposition 8 team's "Hail Mary." . . .

In July 2011, Engage: The Journal the Federalist Society's Practice Groups, published an article on the Proposition 8 case, including issues of standing, titled "Perry v. Schwarzenegger: Is Traditional Marriage Unconstitutional?" The author is George W. Dent, who is Schott-van den Eynden Professor at Case Western Reserve University School of Law. You can read the essay here.

The latest issue of Engage: The Federalist Society's Practice Journal, features and article by Stefan Marculewicz and Jennifer Thomas titled "Labor Organizations by Another Name: The Worker Center Movement and its Evolution into Coverage under the NLRA and LMRDA." It begins:

The labor union, the primary collective advocate for workers’ rights in the United States for more than a century, has experienced a significant decline in membership.  In 2011, only 6.9% of American workers in private industry were union members, compared to 9% in 2000 and 16.8% in 1983.  As a result of this decline, workers’ rights advocates, whether part of a traditional labor union or not, have sought new and innovative means to effectuate change in the workplace.  

One of the most significant examples of this effort is the development of organizations known as “worker centers.”  Today there are hundreds of worker centers across the country.  Their structures and composition vary.  Typically, they are non-profit organizations funded by foundations, membership fees and other donations, that offer a variety of services to their members, including education, training, employment services and legal advice.   They also advocate for worker rights generally through research, communication, lobbying and community organizing.  Increasingly, however, worker centers are directly engaging employers or groups of employers to effectuate change in the wages, hours, and terms and conditions of employment for their members.  Indeed, when it comes to such direct engagement, these worker centers act no differently than the traditional labor organization.

Yet, few, if any of these worker centers are required to comply with the laws that regulate labor organizations—meanwhile some worker centers use these same laws to promote the rights of the workers they represent.  Many provisions of these laws were enacted to ensure certain minimum rights of workers vis a vis the organizations that represent them.  Statutes like the National Labor Relations Act (NLRA) and the Labor Management Reporting and Disclosure Act (LMRDA)⁷ contain significant protections with respect to promotion of the principles of organizational democracy, access to basic information and promotion of a duty of fair representation.

The latest edition of Engage, the Federalist Society's practice journal, includes a fascinating article by Roger Marzulla titled "Lenity: An Essential Rule for Interpreting Environmental Crimes Statutes."  The article begins:

Unclear environmental laws and vague regulations defeat their stated purpose—environmental protection. The success of our framework of environmental laws and regulations depends on how well people follow the regulations’ mandates and prohibitions. But if no one can understand them, and no one knows what is required or prohibited, these laws will not achieve their intended result. The more complex the regulatory regime, the less clear the laws and regulations, and the more difficult it is for the most well-intentioned individual to comply because he or she cannot ascertain what is expected. Imprisoning people for unintentional violation of ambiguous laws and regulations undermines the principles of fairness, due process, and respect for the law—all of which underlie the legal rule called “lenity.”

The Rule of Lenity

The rule of lenity is a judicial doctrine that requires ambiguous criminal laws to be interpreted in favor of persons subjected to them.

This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.

On October 19, FedSoc's Silicon Valley Lawyers Chapter and the Hoover Institution's Uncommon Knowledge hosted Supreme Court Justice Antonin Scalia as he sat down for a wide ranging interview in which he discussed subjects including the "living constitution," Roe v. Wade, Congress' relationship to the court, and his new book Reading Law: The Interpretation of Legal Texts.

Featuring:

• Hon. Antonin Scalia, United States Supreme Court
• Host: Mr. Peter Robinson, Research Fellow and Host of Uncommon Knowledge, Hoover Institution

The October 2012 issue of Engage, FedSoc's practice journal, features the article "A U.N. Regulated Internet? The Case for Defending Against Persistent Intergovernmental Threats to Internet Freedom" by Robert M. McDowell. It begins:

One of the most important communications policy battles affecting freedom and prosperity in the digital era is not unfolding in Congress, the White House, the Federal Communications Commission or anywhere else in Washington.  The struggle is global and has been underway for at least a decade, albeit unnoticed until this year.  The next battlefield in the fight to maintain Internet freedom will be a diplomatic conference this December in the United Arab Emirates, where 193 countries will convene to renegotiate the International Telecommunications Regulations (ITRs), decades-old treaty-based rules originally designed to govern the international exchange of old-fashioned voice telephone services.

As you read this, scores of countries, including China, Russia, and India, are pushing hard to turn the ITRs into tools for intergovernmental control over Internet governance.1  While we have been focused on other important political and economic issues here in the United States, the effort to radically reverse the long-standing international consensus to keep governments from regulating core functions of the Internet’s ecosystem has been gaining momentum.  The reach, scope, and seriousness of this effort are nothing short of massive.  But don’t take my word for it.  As then-Russian Prime Minister Vladimir Putin said last year, the goal of this effort is to establish “international control over the Internet using the monitoring and supervisory capabilities of the International Telecommunications Union (ITU).”2  In short, the Internet’s fate is once again at a crossroads.  This article outlines the threat posed by international regulation of the Internet and urges policymakers, here and abroad, to work together to preserve the existing bottom-up non-governmental Internet governance structure and to avoid any expansion of intergovernmental powers over the Net.

The July 2012 edition of Engage, the journal of the Federalist Society Practice Groups, is now online.  Here is the table of contents:

ADMINISTRATIVE LAW & REGULATION

• Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know? by Michael D. Pepson & Daniel Z. Epstein
• State Efforts to Impose "Amazon Tax" on Internet Vendors by Kenneth K. Lee
• United States v. Home Concrete & Supply LLC and Its Implications for Administrative Law by Elizabeth Milito

 CIVIL RIGHTS

• No Conservative Consensus Yet: Douglas Ginsburg, Brett Kavanaugh, and Diane Sykes on the Second Amendment by Nelson Lund
• Testimony on the "Democracy Restoration Act" by Roger Clegg

CORPORATIONS, SECURITIES & ANTITRUST

• The Economic Freedom Amendment: A States-Based Response to the Nationalizing Effects of Bailouts and Federal Ownership of Corporate Stock by Aaron Jack

CRIMINAL LAW & PROCEDURE

• Criminal Jurisdiction of Indian Tribes: Should Non-Indians Be Subject to Tribal Criminal Authority Under VAWA? by Tom Gede

ENVIRONMENTAL LAW & PROPERTY RIGHTS

• Sackett v. Environmental Protection Agency: Compliance Orders and the Right of Judicial Review by Damien M. Schiff

INTELLECTUAL PROPERTY

• An Attack on Separation of Powers and Federal Judicial Power? An Analysis of the Constitutionality of Section 18 of the America Invents Act by Charles J. Cooper & Vincent J. Colatriano

LITIGATION

• Philadelphia Tort Litigation: Forum Shopping and Venue Reform by Mark A. Behrens

RELIGIOUS LIBERTIES

• Which Religious Organizations Count as Religious? The Religious Employer Exemption of the Health Insurance Law's Contraceptives Mandate by Stanley W. Carlson-Thies

SPECIAL SECTION: SHARIA LAW IN AMERICAN COURTS

• American Family Law and Sharia-Compliant Marriages by Karen Lugo

TELECOMMUNICATIONS & ELECTRONIC MEDIA

• Allocating Radio Spectrum for the "Mobile Data Tsunami" by Thomas W. Hazlett
• Assessing Competition in the Wireless Sector: How DoJ Can Clear Away the Fog from Proposed Mergers by Harold Furchtgott-Roth

BOOK REVIEWS

• Taming Globalization: International Law, the U.S. Constitution and the New World Order by Julian Ku & John Yoo Reviewed by Jeremy Rabkin
• Power and Constraint: The Accountable Presidency After 9/11 by Jack Goldsmith Reviewed by Paul E. Mirengoff

You can find a PDF of the entire issue here.

In the August 12, 2012 issue of FedSoc's ABA Watch, we offer a preview of the ABA's annual meeting in Chicago, including examining how the ABA has reacted to executive actions by the current and past presidential administrations. We also discuss the ABA's concern with the judicial confirmation process, and we highlight the ABA's support of the Supreme Court decision in Arizona v. U.S. And, as in the past, we digest and summarize actions before the House of Delegates.  Here is the full table of contents:

• The ABA and Executive Power in the Obama Administration
• ABA House of Delegates Considers Policies on Religious Profiling, SLAPPs, and Campaign Finance
• ABA Weighs in on Judicial Selection
• ABA Praises Decision in Arizona v. United States
• ABA Urges Confirmation of Judicial Nominees

ALEC's American Legislator blog recently highlighted FedSoc's StateCourtsGuide:

In recent years, the debate over the best method for choosing judges has captured an increasing amount of attention. In response to the growing interest in this issue, The Federalist Society created www.StateCourtsGuide.com to serve as an impartial source of information and educational materials for those interested in this topic, including state legislators, policymakers, opinion leaders, and the public at large.

As the site explains, there are four main methods of judicial selection: judicial elections (22 states), democratic appointment (5 states), the Missouri Plan (13 states), and some hybrid of those methods (10 states).

More and more legislators in state houses across the country are looking at those options and debating whether their own state should amend or change their method of selection. In just the past two years, several state legislatures (including Florida, Missouri, Montana, North Carolina, Pennsylvania, and Tennessee) have considered legislation that would alter their method of selection, while other states (such as Nebraska) have considered measures to evaluate their method of selection.  This spring, legislators in Tennessee received national attention when they voted to pass a constitutional amendment that would change the state’s method from Missouri Plan to democratic appointment.  (Note: the amendment has to be approved by both chambers again in the next two-year General Assembly and then put on the ballot and passed by voters in 2014 in order to take effect.)

The debate has also been followed by experts and policymakers an all sides, and the topic has been editorialized in the Wall Street Journal, National Review Online, and national figures (such as retired Supreme Court Justice Sandra Day O’Connor) continue to weigh in.

The purpose of www.StateCourtsGuide.com is to provide a one-stop resource for anyone interested in the subject of state judicial selection.

Its features include:

• An interactive map on the landing page, in which one can click on any state to learn how its judges are chosen.  There is also basic information for each state’s high court: the number of judges, their terms, how a judge retains his seat on the bench, links to the state high court, breakdown of the makeup of judicial nominating commissions for Missouri Plan and hybrid states, and the relevant constitutional and/or statutory authority for all this information.
• A comprehensive body of scholarship on judicial selection – with links to all the articles available on the web.
• A Public Opinion page which features the most polling data on judicial selection and judicial philosophy than anywhere else on the web.
• Federalist Society white papers, multimedia, and other resources.
• A News page with news on judicial selection on each state’s high court from across the country, along with a specific newsfeed on each state’s supreme court on each state’s page.
• Other valuable resources, such as this one-page pdf on judicial selection in the U.S. and judicial election expert Professor Bonneau’s white paper, A Survey of Empirical Evidence Concerning Judicial Elections.

The Federalist Society is proud to announce the re-launch of SCOTUSreport.com--a storehouse of news and analysis on the Supreme Court.  Its blog features original commentary, including:

• Richard Garnett, Against the “Two-Minute Hate” Directed at Chief Justice Roberts
• Richard Epstein, Long-Term and Short-Term Analysis in Constitutional Law and the Health Care Decision
• Rick Esenberg, Roberts’ Quantum Constitution: The Simultaneous Tax/Non-Tax
• Joel Alicea, The Healthcare Ruling’s Stare Decisis Conundrum
• Lee O'Connor, Health Care Decision Dangerously Invites Congress to Expand Taxing Power
• Kurt Lash, A Roberts Switch in Time?
• Brad Smith, Justice Kagan’s Turnabout on Precedent and High Court’s Radicals Hold Fast on Citizens United

Check it out!

The Chicago Tribune covers the sentencing decision:

Ruling in two cases from Chicago, the U.S. Supreme Court ruled today that criminals who were arrested but not yet sentenced for crack cocaine offenses should be able to take advantage of newly reduced sentences.

Corey A. Hill and Edward Dorsey were arrested in 2007 and 2008 in Illinois for selling crack cocaine and were given mandatory 10-year sentences in Illinois.

But they weren't sentenced until after the Fair Sentencing Act went into effect in August 2010. Under the new law, Hill and Dorsey would face just three or four years in jail.

Justice Stephen Breyer said in a 5-4 decision today that the courts should have used the new law to sentence the two men. Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.

The Fair Sentencing Act reduced the long prison terms meted out to people caught with small amounts of crack cocaine. But the law did not make clear whether it should apply to cases that were pending when it was signed.

Last year, the U.S. Sentencing Commission voted to adjust the sentences for as many as 12,000 defendants who were serving time for crack offenses. But the commission did not have the authority to change many of the sentences mandated by Congress.

The sentencing disputes are a legacy of the so-called crack epidemic of the mid-1980s. Then, Congress set stiff mandatory drug-trafficking prison terms based on the amount of drug in the hands of seller. One gram of crack cocaine was treated as though it were equal to 100 grams of powder cocaine.

Five grams of crack cocaine (less than one-fifth of an ounce) called for a minimum of five years in prison, according to the 1986 law, as did 500 grams of powder cocaine. Fifty or more grams of crack meant at least 10 years in prison, as did 5,000 grams of powder cocaine.

Congress agreed in 2010 to pull back and to adjust the punishments for crack offenses. The Fair Sentencing Act set 28 grams of crack as the trigger for a five-year minimum prison term, and 280 grams for a 10-year term. But it did not say what should happen to people charged but not yet sentenced.

Hill sold 53 grams of crack to a government informant in 2007 and was convicted in 2009. In December 2010, a federal judge in Chicago gave him 10 years in prison. Had the new law applied, he would have been sent to prison for about four years.

Dorsey sold 5.5 grams of crack to an informer at an Illinois motel, and because of an earlier offense, he was given a 10-year prison term in September 2010, one month after the new measure became law.

The 7th Circuit Court of Appeals in Chicago upheld their sentences, but after the Justice Department switched positions last year, the judges split 5-5 on whether to reconsider the matter.

William G. Otis discussed the case post-argument in a FedSoc SCOTUScast you can listen to here. In 2009, FedSoc's Civil Rights Practice Group published a white paper by Christopher Byrnes on "Proposals to Eliminate Sentencing Disparities between Crack and Powder Cocaine Offenses," which you can read here.

UCLA law professor Eugene Volokh analyzes the decision at the Volokh Conspiracy:

Right now, over-the-airwaves radio and television broadcasting is the stepchild of First Amendment law — a medium that the Court has viewed as uniquely less protected when it comes to content-based restrictions. Most significantly, in FCC v. Pacifica Foundation (1978) the Court upheld limits on vulgarity in broadcasting that it would have (and has) struck down in other media, and in Red Lion Broadcasting v. FCC (1969) upheld the “Fairness Doctrine” that requires broadcasters to give access to rival views even though much the same policy has been struck down for other media. The rationales that the Court has given for this (the supposed greater scarcity of the spectrum, the government’s consequent ownership of the spectrum, the supposed greater intrusiveness of broadcasting in the home, the supposed greater accessibility of broadcasting to children, and the history of regulation) have been sharply criticized since then, and one Justice (Justice Thomas) has expressly said that he would reject this less favored treatment. Moreover, the Court has declined to extend the broadcasting cases to other media, such as the Internet and cable television. Many observers thought that this Term’s decision in FCC v. Fox Television Stations, Inc. would deal with this different treatment, whether to sweep it away, to narrow it, or to reaffirm it.

This did not happen. Instead, the Court decided the case on narrow grounds: The incidents being litigated involved only brief instances of vulgarity or nudity, and at the time they happened FCC policy was that only “deliberate and repetitive use” was punishable “indecency” (though the policy had later been revised). Because of this, holding the broadcasters responsible violated the Due Process Clause “void for vagueness” doctrine, which in this instance may best be seen as a “fair notice” doctrine: “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” And here there was no fair notice not because the policy as of the time of the broadcasts was ambiguous, but because it seemed to be pretty unambiguously inapplicable to the broadcasts. The Ex Post Facto Clause applies only to criminal punishments, not civil findings of liability (and, in one instance, a civil fine) such as those involved in this case. But this “fair notice” requirement provides some protection along those lines in this situation.

Why did the Court not reach the First Amendment question? It’s possible that this is because the Justices simply thought that it’s good to decide such cases on the narrowest possible grounds, and many past opinions have indeed said that the Court should opt for such narrow decisions — especially in constitutional cases — whenever possible. But the Court agrees to hear a tiny fraction of the cases that it’s asked to take, and it generally takes them precisely to render decisions that are broadly applicable and thus worth the Court’s time; as a result, many other past opinions have not opted for the sort of narrowness we see here.

For more on the case, in 2009 FedSoc's Engage journal published an article by Adam Thierer titled "FCC v. Fox and the Future of the First Amendment in the Information Age." That same year Chris Landau discussed the case in a FedSoc SCOTUScast.

"No Conservative Consensus Yet: Douglas Ginsburg, Brett Kavanaugh, and Diane Sykes on the Second Amendment" -- Engage Volume 13, Issue 2, July 2012

GMU law professor Nelson Lund's paper examines the largely unexplored subject of the different approaches courts are taking with regard the right to possess firearms following the Supreme Court’s 2008 recognition of this right in District of Columbia v. Heller. As always, The Federalist Society takes no position on particular legal or public policy initiatives. Any expressions of opinion are those of the author. The Federalist Society seeks to foster further discussion and debate about this issue. To this end, while there is currently a limited amount of scholarship on this subject, we offer links below to various court decisions discussing this issue, and we invite responses from our audience. To join the debate, please e-mail us at info@fed-soc.org.

Professor Lund concludes:

The Supreme Court’s Heller opinion disapproved a governmental ban on keeping a handgun in the home, while endorsing a number of other gun control regulations. The Court refused to adopt any clear analytical framework for resolving the countless issues about which Heller said nothing. Some of its reasoning, or rhetoric, suggests that such issues should be resolved solely by consulting American history and tradition, along with the text of the Constitution. Other parts of the opinion can be read to point toward the use of the Court’s “tiers of scrutiny” approach.

The federal courts of appeals have declined to follow the history-and-tradition approach. The effort by Judge Brett Kavanaugh to take that approach in his Heller II dissent illustrates why this approach is not likely to prove fruitful, or even workable. The D.C. Circuit’s majority opinion in Heller II illustrates the perils of adapting the “tiers of scrutiny” approach without an adequate regard for the value of Second Amendment rights. Judge Diane Sykes’ opinion for the Seventh Circuit in Ezell shows that circuit judges who are so inclined can show appropriate respect both to the Supreme Court and to the Second Amendment. She deserves to be widely imitated.

George F. Will comments in the Washington Post:

At Constitutiona Daily, Lyle Denniston discusses a lawsuit seeking to overturn the military's ban on women in combat.  According to the press release from the plaintiffs:

We want to eliminate this last vestige of formal discrimination against women by the federal government, and ensure that women in the military have the same opportunities and the same obligations as men. No other employer in the country may tell a woman that she is barred from the job merely because she is a woman.  It is time for the Pentagon to stop relying on sex as a proxy for fitness to serve.

Denniston comments:

Under the Constitution’s Article I, Section 8, Congress has explicit authority “to make rules for the government and regulation of the land and naval forces.”  Still, like all powers given to the national legislature, this one could not be used in a way that violated constitutional rights.  For example, a rule barring racial minorities from military service clearly would not be valid now.

But a more significant factor, when discussing any lawsuit challenging military policy, is that the Supreme Court has long held and applied the view that the courts should seldom intrude into military policy, on the premise that the Constitution assigns that function to the political branches, and the view that courts are not experts in the field of managing military operations.

That deference to the military goes back a long way, and was well established by the time the Supreme Court issued a series of decisions during and after World War II, creating the constitutional concept of “military necessity,” meaning less judicial second-guessing of military policy.

There are more recent precedents, but they seem to point in opposite directions.  In 1981, in  the case of Rostker v. Goldberg, the Court upheld the policy that limited the military draft to men.  It did so primarily on the basis that the draft was to produce troops for combat duty, and women, of course, could not perform that duty.  The Court majority accepted that exclusion without question.

But in 1996, in the case of United States v. Virginia, the Court struck down a males-only admissions policy at Virginia Military Institute in Lexington, Va., partly because it shut women out of a channel leading toward potential careers in the military.

For FedSoc's prior discussion of related issues, see Anita K. Blair's Engage article "US v. Virginia: The New and Improved Equal Protection Clause."

Richard Kahlenberg comments at the Chronicle of Higher Education:

In February, when the U.S. Supreme Court decided to hear a challenge to the use of racial preferences at the University of Texas, supporters of affirmative action understood the move to be a bad sign. But at least in the lower courts, opponents of affirmative action had argued that the University of Texas’s use of race was illegal under a 2003 precedent, Grutter v. Bollinger.

Now, as Peter Schmidt notes in a Chronicle story, court papers filed by opponents of affirmative action last week go further and invite the Supreme Court to overturn Grutter, a decision which allowed universities to employ race under certain circumstances.

It is possible that the Supreme Court will simply reverse Grutter. Indeed, there may be four conservative justices—John Roberts, Samuel Alito, Atonin Scalia, and Clarence Thomas—who are willing to apply to higher education Chief Justice Roberts’s argument in the K-12 setting: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But outright reversal of the nine-year-old Grutter decision, and adoption of a full ban on affirmative action, seems unlikely to appeal to the swing vote on the court, Justice Anthony Kennedy. In the 2007 challenge to the use of race in the K-12 setting, Justice Kennedy rejected an absolutist position. Kennedy believes that racial diversity is a positive value, and doesn’t believe, as other more conservative justices do, that the use of race is almost always barred.

Having said that, the new brief filed last week is likely to persuade Kennedy to significantly curtail the ability of colleges and universities to use race. The brief mentions Justice Kennedy’s name 20 times. (The other eight sitting justices, collectively, are mentioned by name twice.)

Justice Kennedy dissented in Grutter and one of his central complaints was that the Supreme Court had given too much deference to the University of Michigan Law School in its contention that it could find no way to produce a critical mass of minority students other than by using race. In the brief filed by the petitioner, Abigail Fisher, the following data are emphasized:

* In 1996, when UT Austin used race in admissions, the freshman class was 18.6% African American and Hispanic.

* In 1997, when UT Austin was temporarily barred from using race in admissions, but employed socioeconomic factors, the entering class was 15.3% African American and Hispanic.

* In 2004, when UT Austin was still barred from using race, and employed socioeconomic factors combined with a plan to admit the top 10 percent in every high school, the freshman class was 21.4 percent African American and Hispanic—a greater representation than the 1996 entering class in which race was employed.

* The University of Michigan Law School’s racial diversity program, upheld in Grutter, resulted in a minority representation of 14 percent—a figure below the minority percentage achieved by UT Austin using socioeconomic status alone (15.3 percent) or socioeconomic status along with the top-10-percent plan (21.4 percent).

Given these data, it seems hard to see how Justice Kennedy, who wants race used only as a “last resort,” would support the decision of UT Austin to reintroduce considerations of race after 2004.

For more on the case, see Joshua P. Thompson's Engage article "Fisher v. University of Texas at Austin: Could the Supreme Court Revisit Its Decision in Grutter."