Linda Greenhouse alleges:
In late 2005, while Justice Sandra Day O’Connor was still on the court awaiting her successor’s confirmation, the court decided against hearing a challenge to a Massachusetts school district’s plan for maintaining integration by means of racially conscious assignment of students to individual schools. The plan had been upheld by the federal appeals court in Boston. Since there was no conflict among the lower courts on the question of the constitutionality of voluntary plans of this sort, the appeal didn’t meet the Supreme Court’s normal criteria for review.
Justice Alito was confirmed to Justice O’Connor’s seat a month later, and lo and behold: the court promptly accepted two similar challenges, to voluntary integration plans in Louisville and Seattle. The plans had been upheld in the lower courts, meaning there was still no conflict and the appeals still didn’t meet the justices’ normal criteria. These were the two cases that, decided together, became Parents Involved in Community Schools v. Seattle School District No. 1.
She mentions this in passing. I don’t recall Jeff Toobin or Jeff Rosen ever making this point. Something tells me there may be more to this story–especially the word “promptly.”