John:
Good afternoon from Capitol Hill.
The House and Senate are officially out of town for the next six weeks until they return for a lame duck session in mid- November. And that lame duck will be a busy one. Before they left, both chambers passed a Continuing Resolution to December 16, setting up another government funding deadline. (You can see the House vote here, and the Senate vote here.)
Also on deck are passage of the National Defense Authorization Act, a purported vote to statutorily codify gay marriage protections, the budget, reform of the Electoral Count Act of 1887, and legislation to curtail stock trading by members of Congress.
In the meantime, Congress is out but Washington is hardly quiet. The Supreme Court kicks off a new term this week, and it’s expected to be a blockbuster. The Court will hear cases with major ramifications on voting rights, free speech, environmental regulations, and Section 230 (Big Tech’s government liability shield). The Court will also hear a case on affirmative action. Jonathan Turley has an overview of that case and more here:
This case [Students for Fair Admissions v President & Fellows of Harvard College] on the use of race in college admissions will be heard with a similar case in Students for Fair Admissions v. University of North Carolina.
Since declaring affirmative action in admissions to be unconstitutional in 1978 in Regents of the University of California v. Bakke, the court has never achieved clarity on the constitutional use of race beyond barring any preference “for no reason other than race or ethnic origin.” Then-Justice Lewis Powell declared, “This the Constitution forbids,” but the court has been unable to say with any coherence and consistency what else it forbids in a line of conflicting and vague 5-4 rulings.
These cases involving alleged discrimination against Asian applicants to gain greater diversity for other minorities could produce that long-sought clarity.
In 2003, in Grutter v. Bollinger, the court divided 5-4 on upholding race admissions criteria used to achieve “diversity” in a class at Michigan Law School. (On the same day, the court ruled 6-3 to declare Michigan’s undergraduate admissions unconstitutional in the use of race in Gratz v. Bollinger.)
In Grutter, then-Justice Sandra Day O’Connor stressed that the court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was 21 years ago, and the question is whether time has run out for race-based admissions. Justice Jackson, who served on Harvard’s board of directors, has recused herself from the Harvard case but is expected to vote in the North Carolina case.
The Latest From Around The Conservative Movement
One More Thing…
On the latest episode of Who’s Counting?, Cleta Mitchell and Heritage Foundation Senior Legal Fellow Hans von Spakovsky do a deep dive on election reforms at the state level.
Sincerely,
Rachel Bovard
Director for Policy
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