The Houston Chronicle quoted me on my reaction to the Supreme Court taking Fisher another time.
The court’s decision to take up Fisher’s case again could signal that it doesn’t believe the 5th Circuit met this standard and might be poised to reverse the appeals court’s ruling, said Josh Blackman, an assistant law professor at Houston’s South Texas College of Law.
“The key point is, the fact that they took it means the 5th Circuit probably didn’t do what they were supposed to and the Supreme Court is going to clean up the mess,” Blackman said.
I suspect the 5th Circuit will be reversed. But here, as with all affirmative action cases, the question is how the 5th Circuit gets reversed. Justice Kennedy’s decision in the Fair Housing case reaffirms his level of comfort with some use of race, as he cited a few times his concurring opinion in Parents Involved. But no matter how you slice it, the 5th Circuit did not apply the level of scrutiny that Justice Kennedy urged last time. In Fisher I, Justice Sotomayor was (apparently) able to keep the Court from ruling on the merits. Let’s see what happens this time.
Totally apart from the merits, in recent years, the Court has taken several cases twice–what Richard Re called “SCOTUS repeaters“–and went on to reverse. Bond II, Zivotofsky II, Horne II.
Also, sooo many amicus briefs are going to be recycled from last time.