Friday, December 11, 2015

Will Fisher II Produce Any Judgment At All?

By Michael Dorf

Justice Kagan is recused in Fisher v. Univ. of Texas at Austin (Fisher II), the SCOTUS affirmative action case that was argued on Wednesday. Consequently, going into the argument, the best that the university could realistically hope for was a tie: a 4-4 ruling with Justice Kennedy joining the three remaining relatively liberal Justices to affirm the Fifth Circuit's grant of summary judgment in favor of the defendant UT tying the four most conservative Justices to reverse that decision and instead grant summary judgment for Fisher. Under a rule dating to the early nineteenth century, the result of a tie would be that the lower court decision would be "affirmed by an equally divided court." The case would set no precedent but the Fifth Circuit ruling would remain.

During the oral argument, however, a third possibility emerged. At a number of points, Justice Kennedy suggested that perhaps the right result would be to remand to the district court either to supplement the summary judgment record or to hold a trial. To be sure, by the end of the argument, it appeared that Justice Kennedy's enthusiasm for a remand was dampened by UT attorney Greg Garre's vague answers about what evidence would be introduced if the record were reopened, but it remains possible that Justice Kennedy could conclude that a remand to the district court to take evidence is the right result. In any event, I'm going to assume that he favors that result for purposes of this post. On that assumption, the most likely initial vote at the Justices' conference on the case (which will happen in private today) would be:

Reverse and grant summary judgment for Fisher: 4 votes (Roberts, Scalia, Thomas, Alito)
Affirm: 3 votes (Ginsburg, Breyer, Sotomayor)
Vacate and remand for further district court proceedings: 1 vote (Kennedy)

What would happen in that situation? There would be no majority for any one outcome. Note that this is different from the typical case in which there is majority support for a result but not for a rationale, and thus no Opinion of the Court. To stick to the subject of affirmative action, we could consider Regents of the Univ of California v. Bakke for a standard example of the latter, more common kind of case. There, no view about the legal standard for judging affirmative action programs in general commanded five votes. Because it was "in the middle," Justice Powell's opinion was generally treated by lower courts as controlling for precedential purposes, although it didn't get the full force of precedent until it was adopted by a majority opinion 25 years later in Grutter v. Bollinger.  But long before that, the outcome of the Bakke case was at least clear to the parties, because there were five votes for the same outcome: Bakke won.

The case I am hypothesizing would be different. No single outcome would command a majority. In 1834, Chief Justice John Marshall said that the Court wouldn't deliver a judgment in a constitutional case unless a majority of the members of the Court voted for the result, but as noted on p. 6 of the 10th edition of Supreme Court Practice (formerly Stern & Gressman but now Shapiro et al), the modern practice permits a majority of the Justices participating (so long as there is a quorum, which these days is six), to rule. However, with eight Justices participating, a majority still means five.  So it looks like there would still be no opinion of the Court in Fisher II if the voting pattern hypothesized above comes to pass. What then? I spent about half an hour researching this question and some more time talking this over with proceduralists, only to come away uncertain. It is possible that there is a definitive answer out there in some case, but if so, I haven't found it. Nonetheless, I'm about 80% confident that the right answer would be to treat Justice Kennedy's vote as analogous to Justice Powell's vote in Bakke.

Even so, Fisher II would be more complicated than Bakke. In Bakke, there were only two outcomes proposed by the various Justices, even though there were more than two rationales. Thus, as noted above, although the precedential value of Bakke was up for debate, the outcome in the particular case was clear: Bakke won and the university lost. In Fisher, the votes (by hypothesis) divide among three outcomes, none of which has a majority: reverse (4); affirm (3); remand (1).

A reasonably close nine-Justice analogue is the 2006 case of Rapanos v. United States. The Court considered whether four Michigan wetlands fell within the regulatory authority of the Army Corps of Engineers pursuant to the Clean Water Act. Four Justices (in an opinion by Justice Scalia) effectively said no. As a technical matter, they merely vacated the appeals court's ruling so that their standard could be applied, but it was quite clear that under that standard, the absence of a steady flow of water meant that the wetlands fell outside of federal jurisdiction as the Scalia Four would have read the Act. Another four Justices (in a dissent by Justice Stevens) said yes, and would have affirmed the appeals court ruling to that effect. And then one Justice (Justice Kennedy, naturally) said maybe. Justice Kennedy thought that the Scalia test was too stringent and that the Stevens test was too permissive. He voted to remand for the application of an intermediate standard.

In light of the fact that Justice Kennedy's Rapanos vote was to remand under his unique standard, which was about halfway between the Scalia and Stevens poles, why did Scalia rather than Stevens announce the judgment of the Court? The answer, I think, is that there is at least a common core of the Kennedy and Scalia results: Both undo what the appeals court on its own did, whereas the Stevens group would simply affirm. The tricky bit is what the appeals court does with the case once it comes back. What it in fact did was to punt, by remanding to the district court and the Army Corps. After that, the case disappeared (from WestLaw, anyway, which is where I looked), but it is pretty clear that if it had come back up, the appeals court at that point would have been wise to apply the Kennedy standard. If application of the Kennedy standard resulted in finding the wetlands regulable, then five Justices (Kennedy plus the Stevens four) would affirm; if application of the Kennedy standard resulted in finding the wetlands non-regulable, then a different five Justices (Kennedy plus the Scalia four) would affirm.

Should the Rapanos approach apply in Fisher? In Fisher, as in Rapanos, no position commands a majority, but one could argue that in the case I've hypothesized, there would be five votes for a common core of undoing what the appeals court did. Once the case ends up back in the Fifth Circuit, that court could then apply the Kennedy standard from Fisher II (assuming, as seems plausible, that Justice Kennedy announces a unique one).

In the event that the Court splits as I've imagined, I think the foregoing is the most likely result, but let me suggest two alternatives. One such alternative would be that Fisher simply wins. Here the idea would be that Justice Kennedy's vote to remand is sufficiently different from either of the other alternatives that it's effectively not counted. It would be almost as though he were recused. Of the Justices participating and voting on the record as presented, the result would be 4-3 for Fisher. There is, I think, some logic to this approach, but I don't think it's consistent with the Court's practice of requiring at least a majority of the Justices participating in the case to get a judgment--and while Justice Kennedy's vote would be somewhat analogous to him recusing himself, it is in other respects quite different.

So consider another alternative. What if the three more liberal participating Justices decide to join Justice Kennedy in voting for a remand? Then the Court would be divided between four votes to reverse and grant summary judgment for Fisher versus four votes to vacate and order the record to be reopened (or for a trial) in the district court. Then what? Neither disposition is obviously "narrower" than the other (the much-criticized standard for determining the holding of a divided Court under the much-criticized and puzzled-over standard of Marks v. United States). And in any event, the Marks standard is used in figuring out what rule of law applies when there is an intra-majority disagreement over the rationale for a majority result, but here there is no majority result.

This leaves the arresting possibility that if the liberals strategically abandon their (presumably) preferred option of affirming the Fifth Circuit and join Justice Kennedy in voting to vacate and remand for a new trial, that would leave the Court evenly divided and so the judgment would be affirmed by an equally divided Court. That would be very weird, since (in this scenario), the Court would be equally divided between two outcomes, neither of which is affirming the appeals court, but possibly appropriate depending on how one conceptualizes the rule that an evenly divided Court leaves the lower court judgment intact.

If the idea is "the tie goes to the runner" (I know, that's debated in baseball), then application of the rule here makes little sense. It's not too close to call as between affirm and reverse. However, maybe the affirm-by-an-equally-divided Court rule is based on a different idea--simply that if the Supreme Court doesn't act, the status quo ante is undisturbed. If so, then it doesn't matter what the outcomes the various Justices favor are. If a majority of them can't agree on one, the appeals court decision stands. If so, then even if the three liberal Justices don't change their vote to join Kennedy for a remand, the Fifth Circuit opinion would be affirmed, albeit by an unequally divided Court (4-3-1 in this scenario).

Is that really a possibility? Maybe, but if so, then one can readily imagine the four conservative Justices switching their vote strategically as well, to get a remand to the district court on Justice Kennedy's terms rather than leaving the Fifth Circuit victory for UT in place.

The bottom line is not surprising: The Court will do what Justice Kennedy wants it to do. But the way it gets there could be intriguing.


Shag from Brookline said...

A Joseph Heller constitutional "Catch-22"?

Query: Could the "relatively liberal Justices" (as Mike describes them) affirm, but then join Kennedy on a remand, with a tie as a result?

There are the political aspects to consider what with the contentious 2016 presidential campaigns underway, including the timing for the Court to rule. The late Finley Peter Dunne's Mr. Dooley used to say that the Court follows the "illiction" returns. But at least since Bush v. Gore, sometimes the Court anticipates them - or attempts to.

Joe said...

One blogger wag noted Kennedy will remand Fisher until he retires.

I'd add that it will continue to return (like Rocky, which was in another form was back this year) until twelve more years pass & the "25 years" deadline of race based affirmative action cited in Grutter passes. Thomas will then take a (for a justice) early retirement after writing its obituary.

Kennedy in Parents Involved showed he is not totally against race conscious policies but is concerned with those that seem too personal and blatant. A sort of "baby bear" approach. The program here can go various ways -- at a certain angle, it might seem mild enough not to be necessary. Or, mild enough to perhaps be okay. But, if too mild, it isn't compelling enough for a race based program to be allowed. That's some catch, that catch 22.

This is a bad case to take up -- the plaintiff has a weak case (though as a representative of white privilege, she is darn white), her damages now are around $100 and pride & you have a eight justice court.

(I have to listen to the oral arguments later today but Sotomayor explaining what Alito was trying to say & Breyer trying to shame Kennedy by saying Fisher I was a compromise that no one really liked, but he should honor it sounds promising.)

Unknown said...

I don't know why, in this scenario, Kennedy wouldn't just concur in a judgment of reversal, on the ground that summary judgment was improperly granted to UT and in his concurrence make clear that his rationale was that the lower courts should have engaged in further factual development. Marks is a mess, but I think most people would say that a rationale that leads to the conclusion that summary judgment should have been granted to the plaintiff here is broader than one that leads to the conclusion that the case should proceed for further development of the record. So I really don't see the problem. The distinction between "reverse" and "vacate" is itself pretty unclear, so I don't know why AMK, if he wants to send it back, would object to using the former term. The Court has certainly "reversed" and remanded for further non-ministerial proceedings before. (And even if he wants to send the case back, I doubt he'd so insist on "vacate" rather than "reverse" being the vehicle for doing that if the result was to risk a summary affirmance.)

Also, I'm not sure you're right about the effect of a 4-4 when all 8 justices think the lower-court judgment should not stand. I don't know of a case like that, and I wouldn't be so sure that the Court would say the rule is a summary affirmance in such circumstances. But in any event the Court would just avoid the problem here by five justices using the word "reverse," no?

Unknown said...

Added: In my last paragraph, I mean "I'm not sure you're right" in your second alternative reading. I think we agree on what would happen if the justices' underlying preferences are what you posit.

Michael C. Dorf said...

Thanks for the helpful comments, Sam.

1) To be clear, my second alternative is meant as a provocative suggestion that is consistent with a rationale for the affirm-by-equally-divided-Court rule. I do not actually favor it. I was just floating it as a conceptual possibility.

2) You're right that even to get to the second alternative, we need to conceptualize a Kennedy vote to vacate as different from "reversed." Maybe it's wrong to do so here, but there are numerous cases in which the Court chooses to "vacate" rather than to "reverse." I see the argument that these are not meaningfully different in practical effect, but the Court appears to think they are different, which is what creates the space for the possibilities I explore (but, like you, ultimately reject).

Joe said...

ETA: Looking at the briefs, it looks like she claims the possibility of damages for past unjust treatment. I'm not really inclined to use restrictive standing rules though the somewhat loose rules here as compared to some other cases is notable.

Greg said...

It seems quite possible that we get a unanimous remand with 2 concurring opinions, one that says "we really should have reversed" and one that says "we really should have affirmed."

That seems to be fitting considering some of the negotiated unanimous decisions from last term where the concurring opinion was more of a dissent.

Joe said...

"In 1834, Chief Justice John Marshall said"

The link goes to a 1837 case. Do you have a pinpoint cite of some sort that points to the rule cited?

Ryan Williams said...

Fascinating post Mike. I’ve been spending what is probably an unhealthy amount of time thinking about many of these Marks-related issues over the past few months and the hypothetical split you posit would indeed carry us into some very interesting and uncharted jurisprudential waters.

There have been a relatively small number of prior cases in which the Justices have divided over the appropriate dispositional ruling in a case (e.g., affirm, reverse, vacate, or remand) in their initial deliberations. But in each of those cases, one faction of Justices has ultimately switched its vote to create a clear majority for a particular disposition (almost always to remand), even if they continue to disagree on the rationale. (See, for example, Justice Souter’s concurring opinion in Hamdi v. Rumsfeld and Justice Rutledge’s concurrence in Screws v. United States, 325 U.S. 91, 134 (1945)). But this is more of an informal regularity than a hard-and-fast rule; and there’s no established practice about which faction should switch its vote. So it’s certainly conceivable that the practice might break down in Fisher or in some future case. (For an interesting piece considering the possible alternatives in the event of such a breakdown, and why we’ve yet to see one, see H. Ron Davidson, The Mechanics of Judicial Vote Switching, 38 Suffolk U. L. Rev. 17 (2004)).

Of course, if there is strategic vote-switching of the type you imagine (which I agree is a distinct possibility), there’s a possibility that it won’t be disclosed in the Justices’ actual opinions. If not, we may not know for sure how the voting unfolded until the currently serving Justices’ papers are made public, which unfortunately is not likely to happen for a very long time.

JR said...

Echoing Ryan, very fascinating. And I think Rapanos is wildly apropos because, even though I agree with Prof. Dorf that Kennedy's test should (pretty clearly) control under Marks, the circuits actually split on that question. As I recall, something like 4 circuits went with Kennedy's test, 2 went with Scalia's, and the 9th went with both. (Those numbers may be off a bit from memory of two year old research being what it is, but the gist is correct.)

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Joe said...

Off topic: Prof. Dorf contributed to a discussion of artificial intelligence:

Aaron Jordan said...

Thanks for explaining. I think the remand remains the most likely scenario. Justice Kennedy's line of questioning suggests he doesn't want to be the vote to overturn affirmative action, and unlike in Obergefell it will be Roberts, not he, who gets to write for the court. Even though I don't think Fisher is the most compelling AA 'victim' and her case is moot, the conservatives have a reason to continue pursuing this litigation because Kagan has to sit on the sidelines. By Fisher III, we'll have a 30 year old plaintiff.

Anonymous said...

Does anyone here think that the Justices actually care about the Plaintiff in this case? My concern is that with Fisher we are quickly getting into Bleak House territory. One way or the other the woman deserves a vote on the merits, not another remand. We can collect facts till the cows come home--if there is no indication that it will change a ruling on the merits the court looks like it is shirking its responsibilities. Ultimately judges judge and sometimes those judgements are agonizing. Putting them off only bring the court into disrepute.

Whatever else she might be Abigail Fisher is a human being, not a toy for law professors, judges, and bloggers to toss about as their plaything.

Joe said...

Fisher's actual injury claim is weak. Fisher is more a test case and I think the woman herself thinks that too. I doubt she is really being "toyed" here.

And, ultimately, the Supreme Court takes cases largely to settle disputes of law. Yes, the plaintiff herself is in a way besides the point. Yes, they also have to respect her but the amount of attention this is being given shows she is not forgotten either. They didn't have to take the case after she lost (again) below. She isn't being forced -- for damages of $100 and some vague "damages" for not getting into this school -- to keep going here. She isn't being deported, in jail or something. Plus, any "toying" appears to be something she is a big part in.

Shag from Brookline said...

Fisher was a sought after plaintiff by Edward Blum according to "Meet the Supreme Court matchmaker Edward Blum" available at:

According to the article it took Blum 2 years to find her.

David Ricardo said...

This case exists because four Justices wish to totally and completely eliminate consideration of race from college admissions. A fifth Justice probably wants to do so also but is too cowardly to travel down that road to its end, and so the result is Fisher II and as Mr. Dorf points out, what is likely to be Fisher III, Fisher IV and so on until the Court composition changes. The case is before the Court because the prior decisions have said you can take race into consideration under some circumstances but if you actually do so then that specific taking of race into consideration doesn't fit and so the case has to go back for remand.

If the Court is going to ultimately say race can never be taken into consideration in any aspect of any situation, college admissions or whatever the nation needs them to go ahead and do so and quit wasting time, resources and sowing confusion. That's the wrong decision of course as the bigoted remarks by Justices Scalia and Roberts in Fisher II amply illustrate, but if that is what is going to happen then let it happen and let's get on with life. The Court has already so gutted Affirmative Action and its close relation Voting Rights that it might as well put an end to attempts to redress the awful remaining effects of denying minorities basic rights. It's just too bad the elimination of race considerations could not have happened 60 or 70 years ago or more when it could have actually benefited minorities instead of protecting the majority which is what Scalia and company wish to do today.

Shag from Brookline said...

Wikipedia has an interesting article at:

on schools Justices attended. UT Law School provided just one, Tom Clark, who had political leanings. Are the Justices the ones to determine the leading law schools that African-Americans might have difficulty at? [Note: I am well aware that UT is a state school and not private like the ones the current Justices attended.]

Anonymous said...

@Joe and Shag.

David Ricardo and I are on the same page. Fundamentally, citizens have a right to petition the government for the redress of their grievances. Their grievances--not mine or yours. Regardless of the normative merits of her complaint the fact is that an arm of the government--in this case the courts--accepted her petition. Joe's complaint is not relevant because they took the case, water under the bridge. Shag's point is not relevant because they took the case, water under the bridge. Because the courts have accepted her petition they have a duty to rule on the merits and not keep punting the case down the road. As the saying goes, SCOTUS is not final because it is infallible, it is infallible because it is final. Someone has to put a stop to this case and the only group who has the power in our system to put a stop to this case is SCOTUS. So they need to do that, one way or the other. To do otherwise is a dereliction of duty.

Shag from Brookline said...

The duty to rule on the merits may be premature. The granting of Cert can be politically motivated at times. Blum presumably can sense what the RATS + Kennedy (sometimes) are looking for. I don't know the formal evidence that was or could be presented to overcome Scalia's statement, as well as that of Roberts. The NYTimes article I referenced elsewhere suggests there are contrary views. If Scalia were the trial judge as Borowitz suggested (thanks, David), Scalia surely would have found for Fisher. Perhaps this calls for a Fish'r cut bait moment. Whatever, the decision will be a tad political, what with the 2016 campaigns. CJ Taney's Court in Dred Scott was final and what was the fallout? Again, consider the history of the past 150 years since the 13th A and the continuing efforts to maintain the superiority (excuse me, meritocracy) of whites by depriving African Americans of opportunities on a level playing field (as has been well demonstrated in sports, but only after many years, with some still looking for the Great White Hope (aka Trump). Diversity is good for all, justice and fairness is even better. Now let's talk about voting limitations in recent years in the former slave states. Isn't the goal obvious?

Joe said...

James Longfellow made a claim that Abigail Fisher is being "toyed" with.

I noted, and the weakness of her case is part of the argument, that this is a test case. One she willingly is part of. This was my argument, here labeled a "complaint." It is not "water under the bridge." It still goes to it being a test case, not one in which merely her specific claim is what really matters. Fisher I could have been the end of it, but she willingly continued to be a test case.

This goes to the alleged "toying." And, the Supreme Court is there is settle major disputes of law. Fisher is not the first case that they re-heard because of the complications involved. Her right to petition was fulfilled. She lost twice below and was one of the rare cases -- twice -- to be accepted for review, over others who imho had much stronger cases. Now, the point is to determine the question of law and BOTH sides actually have noted the record is not necessarily complete there. That they have to go back to settle damages or add new evidence.

I think they shouldn't have taken the case in the first place so probably on the same page here on some level on finishing this thing but Abigail Fisher is still not to me some sort of victim here.

Shag from Brookline said...

Perhaps in years to come James may emulate a namesake with poetic license of Abigail Fisher's Midnight Ride through UT Law School's campus substituting for the warning "the British are coming" "Guess who's coming to law school?"

No, the "poor little rich girl" is not being "toyed" with, rather the Cert system that can accommodate test cases is toying with a significant group's opportunities to overcome what took place before the 13th A and after. But perhaps this can be resolved by reversing the one-drop rule in America to lessen racial disparities, with diversity becoming more like a college mixer.

Query: I wonder if we can expect a separate opinion in Fisher II from Justice Thomas on the remarks in orals by Scalia and Roberts.

Back to the Scalia comment in particular, I should point out that the knowledge of a justice on matters is not the equivalent of evidentiary "Judicial Notice."