Affirmative Action, Anthony Kennedy, David Boies, Jeffrey Toobin, John Paul Stevens, Labor / Employment, Minority Issues, Nina Totenberg, Ruth Bader Ginsburg, Samuel Alito, Sandra Day O'Connor, SCOTUS, Supreme Court, Ted Olson, Texas

The Wait For Fisher Is Over, And It Was Not Worth The Wait

The front of the Supreme Court building: ‘Equal Justice Under Law.’ (Click to enlarge.)

Justice O’Connor, Justice Stevens, Ted Olson, David Boies, Jeffrey Toobin.

All of them were at the Supreme Court today, eager to hear what the Court had to say. New gay-marriage crusading BFFs Olson and Boies sat together. Also in attendance were lots of other fancy folks — like Solicitor General Don Verrilli and Nina Totenberg — who are there more often.

There’s nothing like late June at One First Street.

At the start of the day, 11 cases remained to be decided, four of them blockbusters. The issues on deck: the Defense of Marriage Act, Prop 8, the Voting Rights Act, and the University of Texas’s use of a form of affirmative action. Today, one of the big cases was resolved; with five others coming out, there are only six remaining.

Today, the Supreme Court, in an opinion by Justice Kennedy, addressed the University of Texas’s use of affirmative action. As the Chief Justice announced that Justice Kennedy had the opinion and would start reading it, a rush swept through the courtroom. People leaned forward. Papers rustled….

And, like waiting for Christmas morning and getting only a $25 gift card to Amazon, it was kind of a let down.

Justice Kennedy took a long time getting to the punch line: remand.

The Court reiterated that race-based preferences are sometimes allowable to achieve a University’s educational purpose. But that they’re subject to strict scrutiny.

So, a school’s decision about whether diversity is important is subject to deference. Yet a school’s use of race-based preferences is not subject to deference, and courts have to make sure that those preference survive a strict scrutiny challenge. And furthermore (internal citations omitted):

Strict scrutiny must not be “ ‘strict in theory, but fatal in fact.’” But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.

And, with that guidance, the Supreme Court sent the case back to the lower courts.

For such a hot issue, the Court’s final decision was 7-1 (Justice Kagan recused, presumably because of her love of University of Texas football).

Honestly, I think Justice O’Connor fell asleep while the opinion was being announced.

Justice Ginsburg read a dissent from the bench, reiterating her previously expressed view that Texas’s 10 percent law is not race-blind. The Texas legislature, she said, thought up the 10 percent rule as a way of achieving racial diversity. Only a lawyer would think of them as separate:

The notion that Texas’ Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell’s famous statement: “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” T. Arnold, The Symbols of Government 101 (1935) (internal quotation marks omitted). Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.

It’s always funny when lawyers make fun of other lawyers for being lawyers.

But Justice Ginsburg didn’t stop there. Today the Court also announced a pair of rulings on the scope of Title VII protection against workplace discrimination.

In one, Vance v. Ball State University, Justice Alito, writing for the Court, held that a person is a supervisor for workplace harassment purposes only if they have the power to hire, fire, promote, or do something similar. If they just give you work do to, they aren’t a supervisor.

Justice Ginsburg, again reading from the bench, said this was foolishness. The reason we have greater liability for supervisor harassment is because supervisors are different.

If your coworker harasses you, you can tell them to “buzz off” (Justice Ginsburg’s phrase). If someone who tells you what work to do harasses you, you can’t because they have more power.

So, the upshot of this case, in law firm terms, is this: if a senior associate harasses a junior associate, the firm won’t have the same liability as if a partner did, because a senior associate is not a supervisor.

Though, if the harassment is funny or really bad, the firm will probably still be written up here.

Justice Alito scowled and shook his head as Justice Ginsburg tore into his opinion. He did not, however, say “not true.” He’d be a good guy to play poker with.

Justice Ginsburg called on Congress to change Title VII — as it did a few years ago in response to Ledbetter v. Goodyear Tire & Rubber Co, by passing the Ledbetter Pay Equity Act.

Jeffery Toobin wrote a lot about that Act, and Justice Ginsburg’s role in getting it rolling, in a recent New Yorker profile of the Justice (it’s behind a paywall, sadly). It’s nice he was in the room to see her try it again.

The Court will be back tomorrow.

Earlier: The Supreme Court Surprises in Fisher v. University of Texas
Affirmative Action Is Dead In The Water; Diversity Is The 21st Century Fight


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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