Reading SFFA v Harvard in Quebec

You have to go through the opinions in "machete" order to see how the affirmative action cases reveal very different (elite) views of America.

When last you saw this space, I was setting off on a European-style taking-August-off sojourn—but in three parts and entirely in North America. I’ll spare you the details on “how I spent my summer vacation”—you can see highlights from Arkansas/Missouri, Quebec, and Cape Cod on my Facebook page—but suffice it to say that I’m now tanned (sort of), rested, and ready to return to the public arena of lawyering and punditry.

There was only one time in the last three weeks when I was tempted to spend time on my laptop writing—after I reread the Supreme Court decision in Students for Fair Admissions v. President and Fellows of Harvard College, which banned the use of racial preferences in higher education. (What, you mean when you go on vacation you don’t bring printouts of judicial opinions with you to read at the beach or by the pool?) It reminded me of reading Dobbs last year, while traveling through Sicily.

In the end, I decided that relaxation was the better part of valor, so I reserved my (re-)take on last term’s biggest case until now. Moreover, much like a Star Wars aficionado might suggest that you watch the movies in “machete order,” here’s my court-watcher’s suggestion for the order in which to read the opinions in SFFA:

1. Roberts: the majority opinion, so you know the actual equal-protection (EP) ruling;

2. Kavanaugh: how that fits with the Court’s precedents, plus a nice gloss on the Grutter v. Bollinger (2003) 25-year shot-clock for winding down affirmative action;

3. Gorsuch: why Title VI presents an even stronger reason for ruling against Harvard, UNC, and all other higher-ed institutions that receive federal funds, because those funds come with explicit anti-discrimination strings attached;

4. Sotomayor: Justice Thurgood Marshall’s view of the Constitution’s treatment of race, allowing what was called “reverse” discrimination to remediate past wrongs, which garnered 4 (not 5) votes in Regents of the Univ. of Calif. v. Bakke (1978);

5. Jackson: the racialist view of the world from the radical left, infused with new anti-racist “learning” that sees any disparity among racial groups to be evidence of discrimination that warrants any and all race-conscious remedial policies;

6. Thomas: debunking the bad law and mistaken social science presented by Sotomayor and Jackson, respectively.

And here are key things from each of these opinions (citations omitted throughout):