On October 31, the Supreme Court will hear oral argument first in Students For Fair Admissions’ case against the University of North Carolina and then in its case against Harvard. That’s a sensible accommodation of the fact that Justice Ketanji Brown Jackson has (for good reason) recused herself from the Harvard case.
The UNC case presents both SFFA’s Equal Protection claim and its Title VI claim, so it is broader than the Harvard case, which involves only a Title VI claim. If the Harvard case were argued first, oral argument in the UNC case would likely refer back to the Harvard case, and that would make Justice Jackson’s recusal more awkward to implement.
Having the UNC case go first does reverse the apparent priority of the cases. The Harvard case was the lead case when the cases were initially consolidated, and it has received much more attention. SFFA filed its certiorari petition in the Harvard case in February 2021, nearly ten months before its certiorari petition in the UNC case. What’s more, the Harvard case had proceeded through a decision in the court of appeals, whereas the Court in the UNC case, evidently viewing it as an appendage to the Harvard case, granted SFFA’s unusual petition for certiorari “before judgment” (straight from the district court, bypassing review in the court of appeals).
Justice Jackson has already shown herself to be a very active questioner. Because she will not take part in the Harvard oral argument, it’s a safe bet that she will be especially active in the UNC oral argument.