Bench Memos

A Happy GVR Thought

There are a pair of promising petitions for review before the Supreme Court, both involving racial preferences and both likely to be taken up by the Court at conference soon. 

The first, Shea v. Kerry, challenges racial preferences in employment at the State Department. The second, Dunnet Bay Construction Co. v. Blankenhorn, challenges racial preferences in government contracting. Review in the latter is important because of, among other things,conflicts in the way the courts of appeals have handled similar cases.  Review in the former is likewise important because the Court’s two pro-employment-preference decisions are dated, dubious, and in tension with later Court rulings — and because such politically correct discrimination is nonetheless commonplace. 

So both cases are worthy, but it will take five votes to overturn the pro-preference decisions below. With Justice Scalia’s death, that is less likely unless and until someone with something close to his judicial philosophy is appointed as the ninth justice. And that’s likely a year away.

But here’s a thought: The Court will be ruling at some point in the next few months, for a second time, in Fisher v. University of Texas-Austin. In that decision, the justices are likely to say something of interest about the right way to approach racial preference cases generally (indeed, the briefing in Shea and Dunnet Bay discusses Fisher I). So perhaps the Court plans to hold the two pending cases until after it has issued its decision in Fisher II, and then send both cases back to their respective courts of appeals — “grant, vacate, and remand” in light of Fisher II, to use the Court’s parlance – for them to reconsider in light of what will likely be an important new precedent.

That would keep these two worthy cases alive, and also avoid the futility of having them briefed and argued at a time when, realistically, all that will likely result is an inconclusive 4-4 affirmance.

Disclosure:  Roger Clegg is president and general counsel of the Center for Equal Opportunity.  Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute.  Both organizations have joined an amicus brief urging the Supreme Court to grant review in Shea, and CEO also joined an amicus brief urging review in Dunnet Bay.

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