Last Friday, the ABA hosted a CLE program, ostensibly on the 2015-16 Supreme Court Term, that delved into the post-Scalia world, how Justice Kennedy saved affirmative action, and why Judge Merrick Garland will be the next Supreme Court justice.
Moderator Adam Liptak noted the old adage from Justice White that whenever there’s one change to the Supreme Court, we really have an entirely new Court. Former Acting Solicitor General Neal Katyal seemed to agree when he confessed his sadness after his first post-Scalia oral argument. With his longtime antagonist off the bench, Katyal described the whole endeavor as a radically different experience. Apparently Katyal is a believer in forging the best steel in the hottest furnace.
And this new Court also brought Justice Kennedy to vote in favor of an affirmative action program for the first time ever. But the panel cautioned against viewing Justice Kennedy as a new man, or even as a pliable vote to protect the Court’s legitimacy. The data-heavy Texas argument appealed to Justice Kennedy’s inclination to resolve the case in the most case-specific manner possible. Professor Stephen Wermiel added that Fisher was set up to accomplish too much — there really was no way to side with Fisher without ending affirmative action writ large and that’s something a cautious jurist like Justice Kennedy just wasn’t ready to do. Professor Rachel Moran, Dean Emerita of UCLA School of Law, also thought the Texas program pushed Justice Kennedy to accept a broader interpretation of neutrality when he noted in his opinion that the supposedly objective “10 percent” provision was functionally more racially preferential than the holistic considerations Fisher objected to.
Free Attorney Time Tracking Template For Smarter Billing
Tired of messy time logs? This free attorney time tracking template helps you bill with confidence and accuracy. Learn more in the full article.
Finally, the panel seemed in agreement that if polls hold true, Judge Merrick Garland will be the next Supreme Court justice. Katyal explained that Judge Garland should always have been a confirmable pick, and that Clinton would be unwise to tempt the Senate while she’ll have at least a few controversial cabinet positions to fill. Nicole Austin-Hillery, Director and Counsel of the Brennan Center’s Washington office, explained that the left also has no appetite for changing nominees after they’ve expended a good deal of political capital defending the Judge Garland pick to their constituents.
If Trump wins, Katyal said something to the effect of, “I’ll be deported so that’ll be your problem.”
After the panel, Professor Moran and Austin-Hillery sat down with me at the Legal Talk Network booth to discuss the panel in more detail. Take a listen…