The Supreme Court on Monday asked the federal government to weigh in on whether the justices should once again wade into the battle over affirmative action. In an order list issued from last week’s private conference, the court asked Acting Solicitor General Elizabeth Prelogar to file a brief expressing the government’s views on a challenge to Harvard’s race-conscious admissions policy. Even if the justices ultimately decide to grant review in Students for Fair Admissions v. President and Fellows of Harvard College, the call for the government’s views likely postpones the case until next spring at the earliest.
It has been five years since a divided court, after the death of Justice Antonin Scalia and with Justice Elena Kagan recused, upheld the University of Texas’ consideration of race as a factor in its undergraduate admissions process. Justice Anthony Kennedy wrote for the majority in Fisher v. University of Texas, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
In his coverage of the Texas case, SCOTUSblog’s former reporter, Lyle Denniston, wrote that the “first test of how lower courts could react to the ruling could come in lawsuits against Harvard University and the University of North Carolina.” The case against Harvard, filed in November 2014, contends that the university violates the federal Civil Rights Act by discriminating against Asian American applicants, but both the district court and the U.S. Court of Appeals for the 1st Circuit ruled for Harvard.
Students for Fair Admissions, a non-profit formed by Edward Blum, the former stockbroker who also spearheaded Fisher’s lawsuit, came to the Supreme Court in February, asking the justices to review the case. The group urged the justices to rule on two questions: whether Harvard is violating the federal Civil Rights Act; and whether the court should overrule its 2003 decision in Grutter v. Bollinger, which held that the University of Michigan could consider race as one factor in its admissions process as part of its efforts to assemble a diverse student body.
The petition arrived at a very different court than the ones that decided Fisher (and Grutter). Although Kagan is not recused from the Harvard case, Justice Neil Gorsuch has since filled the vacancy created by Scalia’s death, Justice Brett Kavanaugh succeeded Kennedy after his retirement, and Justice Amy Coney Barrett succeeded Ginsburg after her death last year.
The justices considered the case for the first time at their conference on June 10 before calling for the government’s views. There is no deadline for the solicitor general to file her brief, but the government is unlikely to file its brief before late November or early December, which would allow the justices to consider the petition again at a conference in early January – and, if they granted review, hear argument in the 2021-22 term. If the government does not file until 2022, the case would almost certainly not be argued until the 2022-23 term, by which time the court would have already issued the high-profile opinions in the abortion and gun rights cases on its docket for 2021-22.
The justices will meet again for another private conference on Thursday, June 17. We expect orders from that conference on Monday, June 21, at 9:30 a.m.
This post is also published on SCOTUSblog.