Heidi Li FeldmanJun 29, 2023

Putting #FAIRvHarvard in context(s), a thread. Text of all opinions available at https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf

Bottom line: The majority and dissent differ fundamentally about the meaning of the #14thAmendment; the meaning of #race in the U.S.; and the importance of #precedent in constitutional decisions from the #SupremeCourt. Plus, Justice #Sotomayor absolutely eviscerates #ClarenceThomas concurrence. 1/ #LawFedi

Show threadHeidi Li FeldmanJun 29, 2023
The multiple opinions in #FairvHarvard run to over 200 pages altogether. I’m not trying to analyze them all or any in exhaustive detail. Fundamentally: the majority adopts an ahistorical, formalistic, “color-blind” reading of the #EqualProtectionClause of the #14thAmendment, and the dissenters assert an interpretation rooted in facts, past and present, about race, subordination, and #democracy in the U.S. 2/
Show threadHeidi Li FeldmanJun 29, 2023
The majority detaches the #14thA from its history, maintaining that it forbids almost all recognition of race in government or government-funded decisions. #JohnRoberts, for the majority, claims that there is no compelling interest in racially diverse student bodies in institutions of higher education. 3/ #FairvHarvard
Show threadHeidi Li FeldmanJun 29, 2023
The lead dissent, by #SoniaSotomayor, demonstrates that the history of the #14thA shows that Americans, including those that wrote and ratified the amendment, have always known that race in the U.S. sets up a caste system in support of #WhiteSupremacy. As Sotomayor writes “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.” #FairvHarvard #LawFedi 4/
Show threadHeidi Li FeldmanJun 29, 2023
For those interested in the #history of the #14thA and its role in #Reconstruction, Sotomayor’s dissent does a good job of explaining the “race-conscious” programs and policies the #14thA justified, such as the #FreedmensBureau. Sotomayor explains how programs like affirmative action in higher education continue this heritage, promoting full democratic participation by those who have been excluded because of their race. 5/ #FairvHarvard #LawFedi
Show threadHeidi Li FeldmanJun 29, 2023
In his opinion for the majority, #JohnRoberts maintains that #FairvHarvard does not overrule #GruttervBollinger, the relatively recent #SupremeCourt decision holding that race may be a consideration in higher education admissions. Roberts argues that Fair is merely implementing Grutter. Sotomayor is particularly good in her rebuttal, quoted in next post in this thread. 6/
Show threadHeidi Li Feldman
Sotomayor quotes #ThurgoodMarshall (citation omitted): “There is no better evidence that the Court is overruling the Court’s precedents than those precedents themselves. ‘Every one of the arguments made by the majority can be found in the dissenting opinions filed in [the] cases” the majority now overrules….’” 7/
Jun 29, 2023 at 4:29pmToot!
Show threadHeidi Li FeldmanJun 29, 2023
Sotomayor’s discussion of the majority’s disregard for #precedent is crucially important. She shows the lawlessness of the decision, the same lawlessness shown in cases like #Dobbs and #Bruen, other decisions where the current right-wing majority ignores settled case law and substitutes its own radical conclusions without any basis in law or fact. This is, as I’ve argued elsewhere, quintessentially tyrannical. 8/ #FAIRvHarvard #LawFedi
Show threadHeidi Li FeldmanJun 29, 2023
#Sotomayor has special scorn for how #ClarenceThomas relies on his own, idiosyncratic views. ‘Citing nothing but his own long-held belief, JUSTICE THOMAS also equates affirmative action in higher education with segregation, arguing that “racial preferences in college admissions ‘stamp [Black and Latino students] with a badge of inferiority.’ … Studies disprove this sentiment, which echoes “tropes of stigma” that “were employed to oppose Reconstruction policies.”’ 9/
Show threadHeidi Li FeldmanJun 29, 2023
Taking a broader view of #FairvHarvard, the majority opinion and the concurrences fit the #Lochner paradigm. As in #Dobbs and #Bruen, Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett all stake out a position divorced from the reality of American life and arrived at by radical, formalist reasoning. Ultimately, dissatisfaction with this sort of decisionmaking led to the New Deal legal revolution. Dissatisfaction with it may yet birth another sea change in US law. 10/10 #LawFedi
Show threadJohn Quentin HeywoodJun 29, 2023
@heidilifeldman We can hope
Show threadDylan Roskams-EdrisJun 29, 2023
@heidilifeldman thank you for this thread. As an interested person who doesn't have the bandwidth to read the whole case these kinds of summaries are invaluable.
Show threadcostrikeJun 29, 2023
@heidilifeldman Let's make it happen.
Show threadKevinJun 30, 2023

@heidilifeldman
Yes, stare decisis is no longer a thing.

At this point, why *wouldn’t* Florida or Texas or Alabama just stop issuing marriage certificates to same-sex couples?

What is stopping any state government from flouting any established law they don’t like, knowing that the inevitable lawsuit will probably be disposed of in their favor?