Judicial Notice (11.05.22): Affirmative Action's Last Stand

A brilliant young professor's untimely passing, a corporate boutique's absorption into Biglaw, and other legal news from the week that was.

The Supreme Court of the United States (photo by David Lat).

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The theme of this week was getting stuff done, completing a variety of necessary but unpleasant tasks: a dental cleaning, taking Harlan for his Covid-19 vaccine (he screamed his head off), and my first colonoscopy. Public service announcement: when you turn 45, get a colonoscopy to screen for colorectal cancer, the second most-common cause of cancer death in the United States. (I’m happy to report that my colonoscopy turned up nothing significant.)

I did fun things too. On Monday, I had the pleasure of interviewing superstar litigator Roberta Kaplan, founding partner of Kaplan Hecker & Fink, for the latest episode of my podcast. A few hours later, Zach and I took Harlan trick-or-treating—and he looked adorable in his skeleton costume, if I do say so myself.

I made a few appearances in the media. My post about the Supreme Court oral arguments in the affirmative-action cases was featured as the Wall Street Journal’s Notable & Quotable writing, both online and in today’s hard-copy paper. I spoke with Declan Garvey of The Dispatch about the affirmative-action arguments and with Charles Passy of MarketWatch about falling bar-exam pass rates in some states. And I was cited by Mark Sherman and Jessica Gresko of the Associated Press regarding minority representation (or the lack thereof) among SCOTUS clerks.

Now, on to the news.

Lawyers of the Week: Patrick Strawbridge, Ryan Park, David Hinojosa, Elizabeth Prelogar, Cameron Norris, and Seth Waxman.

The most talked-about topic this week were the oral arguments before the Supreme Court in the Harvard and UNC affirmative-action cases. So the most talked-about lawyers were the six advocates who appeared before SCOTUS in these high-stakes, high-profile matters: Patrick Strawbridge and Cameron Norris of Consovoy McCarthy, representing Students for Fair Admissions (“SFFA”), the organization attacking affirmative action at UNC and Harvard; North Carolina Solicitor General Ryan Park, representing UNC; David Hinojosa of the Lawyers’ Committee for Civil Rights Under Law, representing UNC students; U.S. Solicitor General Elizabeth Prelogar, representing the federal government in both cases; and former solicitor general turned WilmerHale partner Seth Waxman, representing Harvard.

At this point I’d offer you capsule bios of these lawyers—but Kimberly Robinson has already done an excellent job of that, so I’ll just refer you to her Bloomberg Law write-up. As for my views on the arguments themselves, I refer you to my earlier post, Affirmative Action Is Going Down—And It’s A Good Thing Too. I thought that the six lawyers turned in fine performances overall—and to the extent that the defenders of affirmative action struggled more, I’d blame the hostility of a conservative Court to racial preferences, rather than any shortcomings in their advocacy.

In memoriam:

• Professor Dmitry Karshtedt of GW Law, a “brilliant” scholar of patent law who was “infinitely generous with his time and wisdom,” passed away at 45. We had many mutual friends, so I know from the outpouring of grief on my social-media channels that he was deeply loved by so many.

• California lawyer Paul Morantz, known for litigating courageously against cults on behalf of their victims, passed away at 77.

May they rest in peace.

Judge of the Week: Justice Clarence Thomas.

Whether or not you like Justice Clarence Thomas or agree ewith his views, his influence is undeniable. The big legal news of the week was the Supreme Court’s telegraphing of its likely rejection of affirmative action in university admissions—which would represent the culmination of Justice Thomas’s decades-long quest to end racial preferences in education, just as last Term’s ruling in Bruen v. New York State Rifle & Pistol Association represented the culmination of CT’s decades-long quest to reinvigorate the Second Amendment.

Speaking of Bruen, gun rights, and Justice Thomas, another legal story that generated buzz was Judge Carlton Reeves (S.D. Miss.) issuing a somewhat snarky order in a gun case, asking the parties to brief whether he should appoint a historian “to serve as a consulting expert.” Here’s why (citation omitted):

This Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform. And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.

And Judge Reeves was just warming up. He went on to note that “[h]istorians have been unsparing in their criticism” of Bruen and that he’s thinking about hiring a historian because he doesn’t want to “cherry‐pick the history”—implying that maybe certain other judges (cough cough, SCOTUS) have been cherry-picking.

Judge Reeves’s order is a clear shot across Justice Thomas’s bow. Over at Slate, Mark Joseph Stern hails it as “the first positive development in Second Amendment law since the Bruen revolution,” with the potential to “restore sanity to an area of jurisprudence that is going completely off the rails.” But make no mistake: Judge Reeves’s order is a clear sign that Justice Thomas sets the agenda. He dictates the terms of the debate; the fight takes place on his turf. Lower-court judges might not like Justice Thomas or his views, but they definitely can’t ignore him.

In other CT-related news, newly released emails from John Eastman, the former Thomas clerk and intellectual architect of Trump’s effort to overturn the 2020 election, showed that Eastman and other members of Team Trump viewed Justice Thomas as their “only chance to get a favorable judicial opinion by Jan. 6.” This never wound up happening (thankfully)—a reminder that Justice Thomas is just one of nine justices, and not as extreme as Eastman et al. were hoping.

Although far from omnipotent, Justice Thomas might be the most influential member of SCOTUS today. Other justices might have more power in certain contexts—like Chief Justice John Roberts’s power as leader of the federal judiciary, or the power of “swing” votes like Justices Brett Kavanaugh or Amy Coney Barrett to control an individual case by voting a certain way. But Justice Thomas, through the force of his ideas, might exert the greatest influence over the direction of American law. Cf. Justices Anthony Kennedy and Sandra Day O’Connor, who wielded power as swing votes in key cases, with Justice Antonin Scalia, who exerted greater influence over legal thought as the leading proponent of textualism and originalism.

Other judges in the news: