Judicial Notice (06.09.24): After Affirmative Action

Important opinions from Judge Kevin Newsom, the start of the Hunter Biden trial, a plaintiffs’ firm’s big payday, and the latest group hire by Paul Hastings.

Left to right: Abbe Lowell and his controversial client, Hunter Biden (photo by Samuel Corum via Getty Images).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Last week marked my twentieth anniversary as a legal blogger. On June 5, 2004, I published a mission statement for Underneath Their Robes (UTR), my very first post for that site. Some things I wrote back then make me laugh, and some make me cringe—but I can’t say I regret much, since UTR made possible the strange but delightful career that I’ve enjoyed for the past two decades.

Twenty years ago, as a young assistant U.S. attorney, I had no idea I’d someday get to interview some of the most interesting and influential members of the legal profession. For the latest episode of Movers, Shakers & Rainmakers, Zach Sandberg and I spoke with Bridget McCormack, former chief justice of the Michigan Supreme Court and current CEO of the American Arbitration Association (AAA). Meanwhile, for the Original Jurisdiction podcast, I chatted with Bryan Garner about the just-released twelfth edition of Black’s Law Dictionary. I enjoy what I do so much—and I thank you, my readers, for making it possible.

Today’s testimonial for this publication comes from Matthew Hughes, a newly minted litigation associate in Upstate South Carolina: “Original Jurisdiction is my go-to source of information anytime I don’t have the time to chase a topic down personally. David Lat is fabulously objective in his analysis and hits the key points of the key stories. It’s what a busy lawyer needs to keep up with the entire field of law (including its business aspects) and to intelligently demur when friends and family ask about the latest legal thing that hit the news that you don’t want to actually get into.” Thanks to Matthew for this excellent endorsement.

Now, on to the news.

Lawyer of the Week: Jonathan Skrmetti.

In terms of state attorneys general worth watching, keep an eye on Tennessee’s Jonathan Skrmetti (which is pronounced pretty much how you’d expect, as if there’s an “i” between the “k” and “r”). I mentioned him in these pages last month because he’s investigating a (bizarre and unsuccessful) attempt to foreclose on Graceland—but now he’s in the news for something more significant.

Skrmetti is spearheading an effort by 21 state AGs to get the American Bar Association (ABA) to rethink Standard 206, which requires law schools, as a condition of ABA accreditation, to “demonstrate by concrete action a commitment to diversity and inclusion.” The Standard’s current wording requires schools to “provid[e] full opportunities” to “members of underrepresented groups, particularly racial and ethnic minorities,” and to have a student body that’s racially and ethnically diverse.

The ABA is currently considering revisions to Standard 206. But as Skrmetti and his fellow AGs argue in a letter to the ABA, “the proposed revisions reemphasize Standard 206’s problematic requirement that law schools engage in race-based admissions and hiring.” They contend that Standard 206’s references to race cannot be squared with the Supreme Court’s landmark decision in Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College, which effectively outlawed racial preferences in higher education (aka “affirmative action”).

What is the scope of the SFFA decision? Can educational institutions and employers still take race and ethnicity into account in the wake of SFFA? Or does the Supreme Court’s ruling stand for the broad proposition that the Constitution and federal antidiscrimination statutes require so-called “colorblindness,” to use the term deployed by the first Justice Harlan in his dissent in Plessy v. Ferguson? This is already a recurring issue in American law—as you’ll see throughout this edition of Judicial Notice. (And later this month, I’ll be speaking on an ideologically diverse panel at the Federalist Society’s Third Circuit Chapters Conference, DEI in the Workplace and on Campus Post-SFFA.)