3 Key Takeaways From the Supreme Court’s Decision on Race-Conscious Admissions

To many observers, the Supreme Court’s 4-to-3 decision on Thursday that upheld the use of race-conscious admissions at the University of Texas at Austin came as a surprise.

Even inside the court, it seems: “Something strange has happened,” wrote Justice Samuel A. Alito in the first line of his dissent, “since our prior decision in this case.” In 2013 the court ruled that a lower court, the U.S. Court of Appeals for the Fifth Circuit, had not applied enough scrutiny to Austin’s admissions program, and ordered it to revisit the case. The appeals court then effectively affirmed its prior decision. That judgment was appealed once again to the Supreme Court, which heard arguments in December.

Some Supreme Court cases were expected to deadlock after Justice Antonin Scalia, a vocal critic of affirmative action in admissions, died in February. But his death was not expected to alter the outcome of the Texas case because Justice Elena Kagan had recused herself. During her time as U.S. solicitor general, Justice Kagan had been involved with the Obama administration’s submission of a brief supporting the university. Her recusal left just seven justices to decide the case.

Read the full Chronicle of Higher Education analysis here.

Antonin Scalia’s Death Probably Won’t Affect ‘Fisher,’ but It Could Change the Future of Affirmative Action

By Eric Hoover and Eric Kelderman, The Chronicle of Higher Education

The death on Saturday of Antonin Scalia, the sharp-tongued justice who shaped constitutional debates for nearly 30 years, could end up shifting the Supreme Court’s ideological balance. But his absence is unlikely to affect the highly anticipated ruling in Fisher v. University of Texas at Austin, the pending legal challenge to race-conscious college-admissions policies. In short, the math still seems to favor the court’s conservative wing.

Read the story here.

Related content:

• How Scalia’s Death Affects the State of Affirmative Action (Harvard Political Review)
• What Antonin Scalia’s Death May Mean for the ‘Fisher’ Affirmative-Action Case (The Chronicle of Higher Education)
• Antonin Scalia, Justice on the Supreme Court, Dies at 79 (The New York Times)
• Scalia's Record on Higher Education and Pending Affirmative Action Case (Inside Higher Ed)
• What are the Short- and Long-Term Employment Law Implications of Supreme Court Justice Antonin Scalia's Death? (Littler Mendelson PC)
• Law School Affiliates Remember Alum Scalia for Fiery Personality, Contributions to Law (Harvard Crimson)
• Justice Antonin Scalia: His Life and Career (The New York Times)
• Scalia’s Death Could Affect Affirmative Action Lawsuits (Harvard Crimson)
• Justice Scalia's Death Leads To Employer Uncertainty (Fisher & Phillips LLP)
• The Impact of Justice Scalia’s Passing on Pending Supreme Court Cases (Foley & Lardner LLP)
• A Closer Look at a Comment From Justice Scalia That Sparked Outrage (The Chronicle of Higher Education)
• Justice Scalia’s Death May Have Implications for Affirmative Action (INSIGHT Into Diversity)
• Every Vote Counts: The Scalia Legacy And The Future Of Employment Class Actions Before The Supreme Court (Seyfarth Shaw LLP)
• Where Scalia's Vote Was Decisive (The American Prospect)
• Tameka Porter: The mismatch myth (The Hill)

Justice Scalia's Originalist Sins

The Huffington Post
Posted: September 22, 2010 02:41 PM
David Gans

Supreme Court Justice Antonin Scalia is famous for being a stickler about the words of the Constitution, often castigating his colleagues for failing, in his opinion, to honor what the Constitution's text actually provides. But Justice Scalia tends to apply this approach selectively, or not at all, when it comes to the Fourteenth Amendment. Earlier this year, in McDonald v. City of Chicago, he backed away from the text of the Privileges or Immunities Clause, refusing to honor the words of the Fourteenth Amendment that explicitly safeguard substantive fundamental rights. Indeed, before the argument in McDonald, Justice Scalia went so far as to call the Privileges or Immunities Clause, "flotsam," constitutional trash; so much for honoring the Constitution's text. Then, when the Court decided the case, Justice Scalia agreed that the Fourteenth Amendment protects an individual right to bear arms, but relied for that conclusion on substantive due process - the doctrine he loves to hate in other contexts - rather than follow the Fourteenth Amendment's text. Now, Justice Scalia argues we should also disregard the text of the Fourteenth Amendment's broad guarantee of the equal protection of the laws.

Earlier this week, in a widely-reported speech at the University of Hastings Law School, Justice Scalia argued that the Fourteenth Amendment does not proscribe sex discrimination by the states.

Full Story: http://www.huffingtonpost.com/david-gans/justice-scalias-originali_b_735251.html