Two weeks ago I posted some hypotheses about why it was taking the Supreme Court such an unusually long time to publish the opinion
Comments
I have heard a lot of speculation on why it took so long, but so far your’s sounds the most plausible to me.
Posted by: Bruce D. | Jun 25, 2013 2:10:11 PM
I see. And actually, thinking a little more, the en banc math has moved a bit because Pete Benavides has also gone senior. So the “no” vote on en banc has lost two (Garza and Benavides) and gained only one potential vote (Higginson). Anyway, we’ll see – I suspect the big court will have the final say.
Posted by: Raffi | Jun 24, 2013 7:33:07 PM
Mike Sacks thinks Higginbotham might change. https://twitter.com/MikeSacksHP/status/349304567290277889 That seems plausible to me, though I don’t really know, and you probably have a better sense than I do. Anyway, we’ll see . . .
Posted by: William Baude | Jun 24, 2013 7:17:52 PM
Will – Thanks. But then it will be 2-1, no? I have no inside knowledge here, but I find it difficult to believe Higginbotham and King would change their minds based on today’s opinion.
Posted by: Raffi | Jun 24, 2013 6:48:16 PM
Raffi, 1: she’ll be recused. 2: Mike Sacks points out on Twitter that Judge Garza appears likely to change position on remand, given what he said at the time: https://twitter.com/MikeSacksHP/status/349248033541726208
Posted by: William Baude | Jun 24, 2013 6:39:38 PM
Is Justice Kagan un-recused if the case comes back? I mean, I suppose she can do what she wants, but what would your guess be? Because I have a feeling the CA5 panel is going to reaffirm what they said earlier.
Posted by: Raffi | Jun 24, 2013 5:31:58 PM
One theory: The original Kennedy opinion invalidated the UT plan on narrow tailoring grounds based on the conclusion that the 10% plan was a race-neutral alternative that achieved the benefits of diversity, RBG wrote a dissent that hit the majority hard on whether the 10% plan was race-neutral, Breyer offered to join an opinion that said good faith isn’t enough for narrow tailoring, and Kennedy went that route (with RBG revising her dissent). That would explain why RBG focused on the what-is-race-neutral issue in her brief dissent, even though Kennedy didn’t. But I’m just talking out of my tooches here.
Posted by: Sam Bagenstos | Jun 24, 2013 5:16:28 PM
Your speculation strikes me as the best guess we can make based on what we know. But it’s still a bit of a puzzle.
Posted by: Orin Kerr | Jun 24, 2013 5:13:56 PM
Good catch! I would have said that they reversed the Fifth Circuit, although it is technically a vacatur (the technical difference between the two I have never understood). I’ve fixed the post. In any event, I was still wrong. 🙂
Posted by: William Baude | Jun 24, 2013 4:03:48 PM
“But no, the final opinion invalidates Texas’s program on the narrow, Grutter-based grounds I had expected all along.”
Except that the final opinion doesn’t invalidate the Texas program.
Posted by: Micah | Jun 24, 2013 3:55:11 PM