Does a Footnote in Sackett II Indicate How SCOTUS Will Resolve the Affirmative Action Cases?
In Sackett v. United States (Sackett II), the Supreme Courtroom narrowed the scope of federal jurisdiction below the Clear Water Act. In doing so, Justice Alito’s opinion for the Courtroom adopted the interpretation of the CWA articulated in Justice Scalia’s four-justice plurality from Rapanos v. United States, and rejected the “vital nexus” check articulated in Justice Kennedy’s concurrence. This was vital as a result of, for over fifteen years, the federal authorities, and most lower-courts, had embraced Justice Kennedy’s opinion because the controlling opinion. Because the 1 within the Courtroom’s 4-1-4 break up, Justice Kennedy’s opinion was understood as embodying the narrowest grounds below Marks v. United States.
Whereas most seen Justice Kennedy’s opinion as articulating the outer bounds of federal regulatory jurisdiction below Rapanos, that was not how the case was offered to the Courtroom, and not one of the justices seen that opinion as a controlling precedent. Wrote Justice Alito in footnote 3 of his opinion for the Courtroom: “Neither social gathering contends that any opinion in Rapanos controls. We agree.”
Whereas Justices Kavanaugh and Kagan disagreed strongly with Justice Alito’s embrace of the Scalia plurality, neither contended that the Courtroom was obligated to observe the Kennedy concurrence below ideas of stare decisis. They objected to the substance of the Alito majority, not its therapy of Justice Kennedy’s Rapanos opinion.
What does any of this must do with affirmative motion? Recall that one of many key affirmative motion precedents is Regents of the College of California v. Bakke. This resolution, like Rapanos, was a 4-1-4 resolution. And simply as Sackett II known as upon the Courtroom to revisit the query at difficulty in Rapanos, this time period’s two affirmative motion instances name upon the Courtroom to revisit whether or not the consideration of race in college admissions is illegal, both below the Structure or federal statute.
Subsequent choices have usually handled Justice Powell’s Bakke concurrence—the 1 within the 4-1-4 break up—as controlling, significantly on the query of whether or not the Equal Safety Clause of the Fourteenth Modification prohibits race-conscious admissions insurance policies. However there was one other difficulty within the Bakke case: interpret the Civil RIghts Act. As with the query in Rapanos and Sackett II, it is a query of statutory interpretation, the place issues for adherence to precedent are sometimes at their peak. But in Sackett II no justice claimed that rejecting Justice Kennedy’s interpretation of the CWA in favor of the Justice Scalia plurality offended stare decisis ideas.
If rejecting Justice Kennedy’s Rapanos concurrence didn’t offend ideas of stare decisis, wouldn’t the identical apply to Justice Powell’s Bakke opinion? May this give room for the Courtroom to revisit the query of whether or not federal regulation bars the usage of race in college admissions and to embrace the four-justice plurality from Bakke that concluded race acutely aware admissions vioalte the Civil Rights Act? May this present a manner for the Courtroom to revise the frequent understanding of what federal regulation permits with out offending statutory stare decisis? We should always quickly see.
