There’s no doubt as to what the Biden Justice Department thinks about Harvard’s policy of granting extreme race-based preferences to Blacks and Latinos at the expense of Asian-Americans and Whites. Nor is there any doubt as to its view on whether this Court should grant the Asian students’ petition. Nor is the DOJ likely to think of any arguments in favor of preferences or denying cert that are unknown to the Justices.
Thus, the Court’s request makes little sense to me unless the goal is to delay hearing the case until, at the earliest, the term following the 2022 elections. This, I believe, is the goal.
Amy Howe at Scotusblog lays out the timing here:
There is no deadline for the solicitor general to file her brief, but the government is unlikely to file its brief before late November or early December, which would allow the justices to consider the petition again at a conference in early January – and, if they granted review, hear argument in the 2021-22 term. If the government does not file until 2022, the case would almost certainly not be argued until the 2022-23 term, by which time the court would have already issued the high-profile opinions in the abortion and gun rights cases on its docket for 2021-22.
By that time, too, the mid-term elections will have been held before the Court decides the case (probably in June 2023). Also, by that time many thousands of applicants who could have been spared of racial discrimination by colleges and universities will instead have been victimized by it.
And there is no guarantee that, when it finally gets around to deciding, the Court will grant cert in this case or, if it does, strike down the college quota regime.
The decision to seek the DOJ’s views means that there were neither the votes to grant the petition at this time nor, thankfully, the votes to deny it. Some Justices apparently wanted to do neither.
I imagine (but of course do not know) that the Chief Justice is part of that bloc. Presumably at least two of the three Justices appointed by Donald Trump are also part of it (otherwise, with Justices Thomas and Alito very likely favoring a cert grant, the four votes needed to grant it would have been present). Brett Kavanaugh is probably one of them.
To put it simply, if just two of Trump’s three appointments had voted to grant cert, the Court would be in a position next year to end, or at least curtail, the evil of race discrimination in college admissions.
But it looks like Trump didn’t select two Justices with enough courage to do so. And he selected one (Justice Gorsuch) who contrived to join with the Court’s left-wingers to find that Title VII of the Civil Rights Act somehow outlaws discrimination against gays, lesbians, and transgendered individuals.
Title VII does no such thing, as Justice Alito demonstrated in his dissent. But Title VI straightforwardly bans race discrimination by colleges like Harvard. The Constitution bans it, too.
Unfortunately, even with the addition of three Trump nominees, the Supreme Court can’t yet muster the votes to say so.