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June 24, 2013

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Phil Pucillo

Derek,

It seems to me that an affirmation of the judgment below based upon a 4-4 split of the Justices wasn't a possibility here. From what I can tell, there were never more than three votes (Ginsburg, Breyer, and Sotomayor) to affirm. The doom of the Fifth Circuit's judgment was ensured by the inclination of the remaining five Justices (Kennedy included) to vacate and remand. The only question was whether to do so on the basis that Grutter must be overruled or on the basis that Grutter was misapplied. Even if Roberts, Scalia, Thomas, and Alito were prepared to overrule Grutter, they likely realized that, at best, they'd end up with a plurality opinion with no long-term significance. Better to go with Kennedy and ensure that the judicial review envisioned by Grutter would be more rigorous than before.

Phil Pucillo

Derel Black

Phil, Thanks for the comment. I think your explanation was the odds on rationale before the opinion and I agree that the final opinion can probably still be squared with that. Yet, there is still the problem of why did Sotomayor and Breyer join the majority. The simple answer could be that they agree. Case closed, but I am skeptical. Another reason might be to deflate the case and make it look less contentious, which might have some public reaction benefits. The case certainly has an anticlimactic result, but Sotomayor and Breyer don't write a word in the case, so it is hard to see how this explanation makes a lot of sense unless they actually extracted something from the majority by joining. Maybe they did. Maybe the majority softened its approach to reach 7-1. But was that softening sufficient to justify two liberal moving into the majority. I doubt it. If Kennedy was with the Scalia, Thomas, Roberts and Alito all the way, they had five votes and never needed Sotomayor and Breyer, and there is no reason for Scalia or Thomas to concur. So maybe Kennedy was not with the conservatives all of the way and two liberals slid in to produce a weaker majority opinion. This, of course, still does not make 4 or 5 votes, which is the weakness is my thesis, as I can't explain why Roberts and Alito join Kennedy, unless the prospect of not doing so meant a 4-3-1 opinion that they wanted to avoid for clarity's and precedent's sake.

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