Roman Martinez, a Supreme Court litigator at Latham and Watkins, said there’s “a lot of play in the joints” of the cases, as differences between the justices’ approaches could increase or tamp down on the sweep of the opinions.
“With this court in particular, it's not just who wins or who loses, right versus left, but some of the nuances and the distinctions between the six on the conservative side can really drive a lot of the outcomes,” Martinez said at a Federalist Society event last week.
Affirmative action approaches
In the two cases concerning affirmative action, for example, Roberts and other conservatives could decide the case in a limited way, or in a broader way that might cast doubt on other nondiscrimination provisions of civil rights legislation, such as Title VII employment law.
Gornstein and others noted that Roberts has stated a preference for a “color blind” view of the Constitution that may not allow for the challenged policies that consider race in admissions decisions at Harvard and the University of North Carolina.
Amanda Shanor, a professor of legal studies at the University of Pennsylvania, said at a Federalist Society event last week that a broad ruling for a “color blind” Constitution in affirmative action could put employment discrimination law in the cross hairs “in part because it requires employers to think about race in deciding how they're going to mitigate potential inequalities.”
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September 29, 2022 at 04:01PM
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Supreme Court starts new term in political spotlight, tilted right - Roll Call
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