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I thought April Fool’s Day came early to the Legal Theory Blog when I saw an article authored by Justice O’Connor titled “Affirmative Action in Higher Education Over the Next Twenty-Five Years: A Need for Study and Action.” It is a book chapter, co-authored with Stewart J. Schwab (Cornell) that was originally published in 2010, in a book titled The Next Twenty-five Years: Affirmative Action in Higher Education in the United States and South Africa. It was only posted to SSRN on 12/20/15 for reasons that are unclear.

Here is how the authors describe the majority opinion in Grutter:

The article keeps speaking of “the Court” when it is clearly O’Connor who singularly determined the outcome of the case. (See also her concurring opinion in Lawrence v. Texas insisting that same-sex marriage is not compelled by the Constitution). The authors also dismiss the relevance of the famous, but meaningless “25 year” clock, which apparently inspired the title of the volume.

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

The authors write that “the 25-year expectation is, of course, far from binding on any justices who may be responsible for entertaining a challenge to an affirmative action program in 2028. Those justices will be charged–as Lewis Powell was in Bakke in 1978, and as the Court was in Grutter in 2003–with applying abstract constitutional principles to concrete educational endeavors.”

During oral arguments in Fisher I, Justice Breyer noted that we are nine years into the 25-year clock.

JUSTICE BREYER: If you are going to the merits, I want to know whether you want us to — or are asking us to overrule Grutter. Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed. And so, are you? And, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on?

Scalia also asked about the clcok:

JUSTICE SCALIA: But that holds for only -­ only another what, 16 years, right? Sixteen more years, and you’re going to call it all off.

MR. GARRE: Your Honor, we don’t read Grutter as establishing that kind of time clock. We are looking at this -­

JUSTICE SCALIA: But you’re appealing to Grutter, and that’s what it said.

And in Fisher II, the Chief Justice used the same clock:

CHIEF JUSTICE ROBERTS: Well, you’re talking about the time ­­ Grutter said that we did not expect these sort of programs to be around in 25 years, and that was­­ 12 years ago. Are ­­ are we going to hit the deadline? Is this going to be done on ­­ in your view in 12 years?

…

And so it was important in Grutter to say, look, this can’t go on forever, 25 years. And when do you think your program will be done?

Justice Scalia also got in on the fun:

JUSTICE SCALIA: Mr. Verrilli, do you ­­ you think all of this won’t be necessary in another 13 years ­­
GENERAL VERRILLI: Well ­­
JUSTICE SCALIA: ­­ where we stop disadvantaging some applicants because of their race.
GENERAL VERRILLI: What I think about that is that the ­­ the Court, I think, made a prediction in ­­ in Grutter that that would hopefully be the case.

“Hopefully.”

DirectTV v. Imburgia presented a question of whether the Federal Arbitration Act preempts California Law. The vote was 6-3, but in a relatively odd lineup. Justice Breyer wrote for the Court, joined by the Chief, and Justices Scalia, Kennedy, Alito, and Kagan. Justice Thomas dissented by himself, noting that “that the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., does not apply to proceedings in state courts,” keeping with his decisions in five previous cases.

I remain of the view that the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., does not apply to proceedings in state courts. See Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 285–297 (1995) (dissenting opinion); see also Preston v. Ferrer, 552 U. S. 346, 363 (2008) (same); Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 449 (2006) (same); Green Tree Financial Corp. v. Bazzle, 539 U. S. 444, 460 (2003) (same); Doctor’s Associates, Inc. v. Casarotto, 517 U. S. 681, 689 (1996) (same). Thus, the FAA does not require state courts to order arbitration. Accordingly, I would affirm the judgment of the California Court of Appeal.

Justice Ginsburg, joined by Justice Sotomayor, dissented arguing that the majority decision restricts “access to justice.”

Both the FantasySCOTUS Crowd and the {Marshall}+ Algorithm correctly predicted the outcome, but no one got the split. Both called them as unanimous reversals.

In a rare outcome, not a single user anywhere correctly predicted all 9 justices. A few users predicted that Ginsburg and Sotomayor alone would dissent, but these were in the slim minority.

Even more curious, only a handful predicted that Justice Thomas would affirm, but none of those users also predicted that only Justices Ginsburg and Sotomayor would affirm as well. For whatever reason, Justice Thomas’s statements in those 5 previous cases did not resonate with our crowd.

Finally, this is a fairly divided opinion to be issued so early in the term. Usually the first month is all unanimous decisions.

That’s all for 2015. See you next year!

NPR has an insightful interview with Justice Breyer, where he peels back the curtain at One First Street.

First, on how he approaches oral arguments:

It’s horrible for the poor lawyers! Because we do not think that that half hour, each side, is for them to make their argument. We think we know the argument. And we think that half hour is for us to pose questions that will make a difference to us. … And sometimes the following happens, which I just think is terrific, just terrific: difficult issue — really difficult — and what’s going on in that question is the judges are, through their questions, talking to each other with the help of the lawyer. And the lawyer is drawn into a conversation. And every so often I’ll come off the bench and others will too and say, ‘you know, we really made progress in that argument.’ And progress means it’s a kind of work of art.

And sometimes Justice Breyer doesn’t even need to talk to his colleagues “with the help of the lawyer.” With a Breyer Page, he talks uninterrupted for a few minutes by himself.

Second, on how the Justices vote in conference.

We go around the table. … The chief justices starts and he says, ‘the issue is this case is thus-and-so. And I think I’m leaning this way because,’ and then he gives his reasons. And then it goes to Justice Scalia and then it goes to Justice Kennedy, and then Justice Thomas, Justice Ginsburg, me, Justice Alito, Justice Sotomayor, and Justice Kagan. Nobody speaks twice until everyone has spoken once. That’s an excellent view. I mean, that really is a good rule. And by the time we’re finished, you see, with that part of the discussion, we know where people are beginning and where they stand. And then there can be some back and forth.

This is something I messed up in Unprecedented, as I was misinformed, based on Justice Stevens’s book which was somewhat vague on this point, that the conference starts with the most-junior Justice. I’ve since been corrected.

Third, on what he learned from Sen. Ted Kennedy:

I kept telling my law clerks these things and they gave me a cup with these things engraved. And it says, for example, ‘the best’ — and he believed this, my goodness — ‘the best is the enemy of the good.’ Absolutely, go for the good. Hold out for the best, you’ll end up with nothing. ‘Don’t try to get credit — for yourself or even your boss.’ I mean, he’d say to us, ‘look. If you get a project and you get a law and it’s successful, there will be plenty of credit to go around. And if it’s not successful, who wants the credit?’ And therefore I saw him do this so many times — he’s with someone who has a very different point of view of a different political party and they’re talking about how to produce some kind of compromise. His reaction is, as soon as he sees the opening, ‘what a good idea you have. What a good idea. Let’s see how we can work with that.’ And when it comes time to have the press conference, there he was, pushing the other person out, so that other person would be able to become more popular in his constituency, which is important for elected officials. The process used to work — and I hope it still does in many respects — work at that kind of level. Always.

Fourth, on Congress having a harder time compromising now.

I know what Senator Kennedy thought in part was the cause, because he used to talk about that. He’d say it’s the jet plane. You see, the jet plane means that it’s possible for the elected representative to be home on the weekend. And if he can be home on the weekend, his constituents want him home. So there they are, Friday, Saturday, Sunday, Monday, travelling or home. And they don’t get to know each other as people.

Fifth, on advice from Justices Blackmun and Souter:

Harry Blackmun, who was my predecessor in my particular seat on the court, he told me ‘you will find this an unusual assignment.’ And it is. David Souter told me, ‘you are never off-duty.’ And you’re not. And the point is that all nine of us take this job very seriously. There is no letting up. Their just isn’t. And as you get older, that’s an advantage. It’s tiring, but it’s an advantage. Because it calls for you to give whatever you have — the best of what you have — virtually all the time.

Among Second Amendment scholars, one of our never-ending debates is who was responsible for nudging Justice Scalia in Heller to add various limiting language about the scope of the right to keep and bear arms. Arguably it is all dicta, but the tone is, shall we say, not Scalia. The most obvious candidate is Kennedy. Last year, Robert Barnes wrote an article, quoting Adam Winkler as saying that Kennedy is the weakest link.

Winkler became convinced researching his book that it was Kennedy who insisted that the opinion establishing the individual gun ownership right, District of Columbia v. Heller, contain language that it was not calling into question reasonable restrictions on gun ownership.

“There must be some concern about the way Justice Kennedy is going to go” in future cases, Winkler said.

Barnes interviewed me for that article, and I resisted giving into the Kennedy theory–no matter how many times he asked–as I did in my piece in the American Spectator.

In her column, Linda Greenhouse suggests that it is indeed Roberts, not Kennedy, who was responsible for the “conciliatory” language.

To the contrary, Justice Scalia ended the Heller opinion by acknowledging the specific problems posed by handguns. “We are aware of the problem of handgun violence in this country,” he wrote, “and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution.” (As an aside, the conciliatory tone of this statement is so unlike Justice Scalia that I suspect it was added at the insistence and probably also from the pen of a member of his majority, most likely Chief Justice Roberts.) Justice Scalia (or whoever) continued: “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”

I’ve slowly come around to the opinion that it may be Roberts. Several people who were in the Court during arguments in Heller saw Kennedy as very gung ho and active, while Roberts was far more laid back and reserved. (I wasn’t there).

Consider this lengthy question from the Chief to SG Clement where he rejects having to set a standard of review:

CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, “compelling interest,” “significant interest,” “narrowly tailored,” none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine how these — how this restriction and the scope of this right looks in relation to those? I’m not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don’t know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

Usually it is Kennedy who eschews judicial tests in terms of scrutiny, but Roberts was unwilling to set up a framework that could be used to reach beyond handgun bans.

Obviously, this is all speculation, but this speculation is even more salient now that Scalia and Thomas have fractured off to dissent from the denial of cert.

From today’s oral argument in Fisher v. University of Texas, we find this “drafting error” that would make the authors of Section 36B wince:

“…Justice Ginsburg in her descent…”

Alderson Court Reporting, please call your office. This is almost as bad as “Justice Ginsberg,” “Judge Scalia“, “Mr. Scalia,” and of course missing (Laughter).

H/T @JesseWegman