Relentless Personal Attacks

Will: It poses a more explicit no race discrimination role, compared to the 14th Amendment was always ambiguous. And then in Bakke, the first affirmative action cases, the Supreme Court said, "Well, it's all the same," the Title IV and Equal Protection Clause. Now, whether that premise is right is something that some of the [unintelligible have tried to reopen and that Justice Gorsuch, I think, briefly tried to reopen. But it's a sufficiently well-stated premise that at first these cases were consolidated, just sort of one case. And then, after Justice Jackson was appointed to the court, the court realized that it had to unconsolidate them because she was a member of the Harvard Board of Overseers during a crucial time period of the case. And so, she has recused from the Harvard case, but, of course, they'd like to have a nine Justice Court. So, they split them so she could sit on the North Carolina case and then we could all pretend the Harvard case is unrelated. Or I guess we could pretend that whatever her-- I mean, this is one of those cases where I guess formally recusal makes sense. I don't know that I was really worried that her vote's going to be influenced by her specific service at Harvard. But we'll pretend it cures the problem that she--
There's something uncomfortable about the associational standing taken too seriously. And I think North Carolina, without quite confronting that straight on, was trying to poke some holes in that or trying to pick up on the discomfort we might have with that. They also suggest that at the time that Students for Fair Admission was first created at the time of filing lawsuit, which in theory is [unintelligible 01:16:31] was standing, they hadn't fully gotten all their ducks in a row to show whatever you need to show that you're a real organization and that you [unintelligible 01:16:38] work and all that stuff. There was no interest in this argument. I think literally [unintelligible mentioned. And I guess, especially now that maybe it would affect both cases, maybe it only affects North Carolina case, I'm not sure but I take it it's not going to go anywhere. It may not even get a footnote. But I did think it was weird and worth talking about.