Revisit... as if we'll be paying a social call.
ADDED: Here's Justice Breyer at oral argument, nailing Fisher's lawyer down that he's not asking to overrule Grutter:
Later, when Fisher's lawyer said "I think you can fashion a result in this case which may or may not have to, quote, 'overrule' Grutter," Justice Sotomayor came out with the memorable line: "So you don't want to overrule Grutter, you just want to gut it":
So did the Court gut Grutter today? No, of course, not. That sounds so brutal. But it laid Grutter out on the carving board and advised the Court of Appeals to sharpen the knives.
ALSO: I'm rereading my own notes from my spring Conlaw2 class, when I taught Grutter along with the oral argument in Fisher and I find this, referring to Justice O'Connor's opinion in Grutter:
Is she damaging the SS test by applying it with deference and not attending to the loose fit between purported goal and policy adopted? (How can you gut it if it lacked guts?)
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23 comments:
I think revisit is simply a more elegant way of saying reexamine and I approve. So there.
I can imagine all the justices in their black robes going down to the lower court and knocking on the door of the judge(s) and saying, "Hey guys, we need to return this to you because you didn't get it right the first time. kthxbie" and then getting back in their SCOTUS car and flying away back to their mock greek building to play poker.
It offends me that the court failed to exert any kind of leadership with this decision. The underlying issues are clear as a bell. By kicking the case back to the lower court for another look, the court simply deferred its ultimate responsibility.
No leadership from the Executive Branch, certainly no leadership from the Legislative Branch, and now no leadership from the Judicial Branch.
There will be a revolution in this country. It may take a hundred years, but the lines are drawn. The American taxpayer is getting tired of paying for a government that is so damned inefficacious.
Kennedy is right. The parties did not ask and the courts have no issue to decide. However by vacating and remanding the case back to the district court the parties now have a second bite of the apple to ask.
Decorous?
Oooh, I like that.
I think the court gave the lower court a roadmap and a gps to settle this. AA in its Texas form is almost over.
Why did Fisher's lawyers do it this way - why didn't they ask SCOTUS to overrule Grutter?
That's obviously what they're after, right?
Do they think it'll be easier to get an Appeals Court to do it?
I think the term "Mental Masturbation" applies to such decisions.
Gutting Grutter would have been racist!
What William said.
So the Court ignores the issue unless an argument is made? That's no way to serve justice.
Also, what James Pawlak said.
If I actually trusted the lower courts and institutions like local governments and universities to be honest, I would be ok with the strict scrutiny standard for affirmative action. Sometimes you really do have to take race into account in order to achieve a valid goal. For instance, one can probably make the case that you really do need a sufficient number of blacks as police officers in a majority black city. You just can't effectively police without black officers. If this standard is applied honestly to college admissions however, it does gut affirmative action. There is no compelling state interest, other than racial spoils, why a certain number of students must be from each race.
But Thomas sees that strict scrutiny won't be applied honestly. You need a clear rule such as no race-based anything.
Gutted or not, someone needs to throw Grutter in the gutter.
a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.”
Right. Because "diversity" - a silly, vague term - is much, much more important than equal protection.
If only he was able to reply "Yes, gut it. Make it so that universities can't have racial quotas, no matter what their excuse is."
Contra William, it is not the Judicial Branch's job to provide "leadership", merely to decide whether or not actions and laws comport with the Constitution (and to a lesser extent, precedent).
The last thing anyone should want is a Judiciary that "leads".
How could the Court find PPACA a tax, when that was not argued, but not be able to question Gruttner because they were not asked to?
Sorry I had the first clip wrong. Fixed now.
"How could the Court find PPACA a tax, when that was not argued, but not be able to question Gruttner because they were not asked to?"
It was argued.
Why did Fisher's lawyers do it this way - why didn't they ask SCOTUS to overrule Grutter?
Because their obligation is to represent their client, not to represent the Constitution or the rest of the country. They figure if they can get a win without overruling Grutter, then they don't need to risk the Court's wrath in asking the Court to do that and end up possibly losing.
Of course, it is a rather messed up system where the meaning of the Constitution depends, not on the actual words in the document, but on what issues some litigant raises or does not raise. Why the hell the rest of us must live or die, sink or swim, depending upon what Fisher's lawyers argued is how we end up with such absurd rulings where the Court tries to be narrow and ends up distorting everything.
First you gut Grutter. Then dredge it in a flour and salt coating. Then you saute it for about 5 minutes per side. Best damn Grutter you ever ate, by Gawd.
I got that recipe from Paula Deen,,, is it racist?
"Because their obligation is to represent their client, not to represent the Constitution or the rest of the country."
Right, so I guess what I'm asking then is why did Fisher's lawyers think that they'd be best representing their client by NOT asking SCOTUS to overturn Gruttter even though an overturn would be the best result for their client? Why were they shooting for a lesser result? They must not have believed they'd have gotten the overturn, right?
Franklin,
Why were they shooting for a lesser result? They must not have believed they'd have gotten the overturn, right?
Yes, and I suspect they were right.
Can they just finish this shit before my 13 year old applies to UT for undergrad? My lord, what a bunch of hair-splitting cowards.
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