Anti-affirmative action efforts target West Point — and those efforts reach the Supreme Court
Also: The latest Trump news and important reports from Erin Reed and Lee Hedgepeth. And: How courts' schedules tell us about their values.
As with abortion, the U.S. Supreme Court’s decision ending race-conscious admissions in public and private colleges was not the end of the story. It was, perhaps, just the beginning.
Lawyers behind the college cases went to the Supreme Court on Friday evening seeking to end race-conscious admissions at West Point:
This is an aggressive move.
Law Dork has previously covered efforts at moving the anti-affirmative action litigation into the business world, but the Supreme Court filing pushed the West Point case front and center for now.
In June 2023, when the Supreme Court decided that the race-conscious admissions policies at Harvard and the University of North Carolina were unconstitutional, they specifically disclaimed effect on the military academies:
That led to this case, filed by the same group — Students for Fair Admissions — less than three months later:
![5. West Point has no justification for using race-based admissions. Those admissions are unconstitutional for all other public institutions of higher education. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (“SFFA”). The Academy is not exempt from the Constitution. See, e.g., Crawford v. Cushman, 531 F.2d 1114, 1120 (2d Cir. 1976) (“A succession of cases in this circuit and others ha[s] reiterated the proposition that the military is subject to the Bill of Rights and its constitutional implications.”). And its calls for blind judicial deference to the military on questions of racial discrimination are “‘gravely wrong,’” both legally and historically. SFFA, 143 S. Ct. at 2162 n.3 (discussing the overruling of Korematsu v. United States, 323 U.S. 214 (1944)). 6. Because West Point discriminates on the basis of race, its admission policy should be declared unlawful and enjoined.](https://substackcdn.com/image/fetch/f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2F828626d9-df1c-46a3-8df6-b16cc7de8ca7_1286x706.png "5. West Point has no justification for using race-based admissions. Those admissions are unconstitutional for all other public institutions of higher education. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (“SFFA”). The Academy is not exempt from the Constitution. See, e.g., Crawford v. Cushman, 531 F.2d 1114, 1120 (2d Cir. 1976) (“A succession of cases in this circuit and others ha[s] reiterated the proposition that the military is subject to the Bill of Rights and its constitutional implications.”). And its calls for blind judicial deference to the military on questions of racial discrimination are “‘gravely wrong,’” both legally and historically. SFFA, 143 S. Ct. at 2162 n.3 (discussing the overruling of Korematsu v. United States, 323 U.S. 214 (1944)). 6. Because West Point discriminates on the basis of race, its admission policy should be declared unlawful and enjoined.")
On January 3, the district court denied the plaintiffs’ request for a preliminary injunction, citing, in significant part, how much was currently unresolved in the litigation:
Since then, the plaintiffs have pressed the district court, U.S. Court of Appeals for the Second Circuit, and now Supreme Court for an injunction pending appeal so that the injunction would be in place before the January 31 application deadline. The application process is well underway, however, so the “application deadline” is really a false deadline.
Regardless of that, an injunction pending appeal in this instance would be extraordinary, as it would require West Point to alter its admissions policy overnight and not as a resolution of litigation but literally as an interim step while litigation proceeds. This is not how litigation works. That’s likely, at least in part, why the district court denied and the Second Circuit did not rule on the requests to each court for an injunction pending appeal. [Update, 5:30 p.m. Jan. 29: The Second Circuit denied the request for an injunction pending appeal on Monday morning, Jan. 29. The plaintiffs informed the Supreme Court of that denial later on Jan. 29.]
Now, though, the lawyers and Students for Fair Admissions are asking the Supreme Court to do so and on the shadow docket. They are asking the Supreme Court to change West Point’s admissions policy in the coming week, with no trial record developed below, with no appellate court consideration, with no Supreme Court argument, and without even full merits briefing at the Supreme Court.
The court has already given this request more sympathetic consideration than it deserves, ordering the federal government to respond to the Friday evening request by 5 p.m Tuesday — less than 4 days after the filing.
Important reads elsewhere
Erin Reed reported on Saturday at Erin in the Morning on an alarming discussion held this week by anti-trans lawmakers:
Audio from a small Twitter Space featuring legislators from Ohio and Michigan was automatically posted publicly, wherein Republican legislators revealed the "endgame" of anti-trans legislation was to ban trans care "for everyone."
Read the full piece:
And Lee Hedgepeth reported on Friday at Tread on Alabama’s suffocation killing of Kenneth Eugene Smith. He spent the day with Smith’s family and was a witness to the state’s killing — the first nitrogen gas execution. It is a difficult but necessary read:
“Tonight, Alabama causes humanity to take a step backwards,” Smith said. He thanked those who supported him in the wake of the botched attempt at his life a year earlier. “I’m leaving with love, peace, and light. Thank you for supporting me. I love all of you.”
Read the full piece:
Many developments — or not — in many Trump cases
Then, there is Donald Trump.
On Friday, the verdict in E. Jean Carroll’s defamation trial came down, and Trump was ordered to pay her $83.3 million. He will appeal, but it was a needed moment for Carroll — and all of those who have faced his harassment over the years.
Also on Friday, the Colorado electors challenging Trump’s inclusion on the state’s Republican Party primary ballot filed their brief in defense of the Colorado Supreme Court’s decision that Section 3 of the Fourteenth Amendment disqualifies him from being president and Colorado law bars him from appearing on the ballot.
The brief’s opening is succinct and says it all:
By spearheading a violent attack on the Capitol in violation of his sworn oath to defend the Constitution, Trump disqualified himself from holding public office. None of Trump’s or the Colorado Republican Party’s counterarguments have merit.
(More to come on this once the filings are all in.)
Notably, in addition to that key filing, lawyers for Colorado Secretary of State Jena Griswold, a Democrat, filed a motion asking for 15 minutes of argument time at the Supreme Court on Feb. 8 due to the state’s interests in defending its laws and policies — a significant issue in the case.
At the same time, there is still no ruling on Trump’s appeal, heard Jan 9, at the U.S. Court of Appeals for the D.C. Circuit of his immunity claims in his federal criminal case in D.C. Sure, there are reasons why rulings — especially a ruling like this — takes time, but it’s also a bit of bullshit. The D.C. Circuit had a responsibility to Trump, the district court, the Supreme Court, and the nation to rule expeditiously. It has failed to do so.
On court schedules and values
In the course of this post, I’ve referenced four topics — Trump’s legal quandaries, an attempt to end race-conscious admissions at West Point, state bans on the medical care for transgender people, and the first nitrogen gas execution.
They tell us a lot about how courts show us their values through the use of their schedules. I’ve written about this previously, but it is important to lay out here again, with this handful of examples in front of us.
Courts made judgments in the less than six months that Alabama set between announcing its nitrogen gas execution protocol and Kenneth Smith’s scheduled execution to allow the state to go forward with its execution. The U.S. Court of Appeals for the Eleventh Circuit issued its order allowing his execution to proceed within 10 days of Smith’s motion for a stay of execution having been filed. The U.S. Supreme Court made its decision to let Alabama kill Smith, in the final instance, in a day.
Even now, with this West Point case, we are seeing the extraordinary speed with which even the Supreme Court can act. The filing from an anti-affirmative action advocacy group came in on a Friday evening. The call for a quick response from the government was issued before 9 a.m. Saturday. Yes, the court could end up rejecting this request out of hand, perhaps even overwhelmingly, but the point is the quick response.
When it comes to bans on gender-affirming medical care, however, the Supreme Court is going to allow those bans that are in effect now remain in effect for the next year or longer without resolution — because it has not yet agreed to hear any case challenging lower court rulings upholding those bans as likely constitutional. The Supreme Court might ultimately uphold them as well, so there are reasons why people might not want a quick Supreme Court ruling — but the failure to act is, for those in the affected states, effectively the same thing.
And, of course, there is Trump. While the Supreme Court is hearing the Fourteenth Amendment case on an expedited schedule, it was not granted on the schedule sought by the challengers to ensure quick and full resolution before the first relevant Colorado deadline. And when it comes to Trump’s immunity arguments, the Supreme Court denied a request to quickly resolve those questions by skipping over the U.S. Court of Appeals for the D.C. Circuit. Because of that, we are still awaiting the D.C. Circuit ruling. With more appeals, doubtless, to follow.
Courts and judges can move quickly. If and when they want to do so. They are telling us their values, and what they value, when they do — and when they don’t.
The Democrat got more votes for president than the Republican 7 of the last 9 elections, yet 6 of the 9 justices on the supreme court are Republicans. This is a rotten result, because we have a rotten constitution. And the law is now whatever this supreme court says it is. I do not think pretending that we have rule of law in this country is doing us any favors. Rule is by power, nothing more, and what has happened is people have gotten power who should not have it. This can only be undone by the public finding a way to take that power back. The system is not failing. It is working EXACTLY the way it was intended to. Pretending otherwise only helps the evildoers. We can figure it out now or we can figure it out next January when there are boots in the streets.
The Roberts Courts repeatedly used delay to benefit conservative results.
The House Democrats requested they speed up a case regarding investigating his financial records. The House was in the midst of impeachment proceedings & the issue was of special interest either way. The Supreme Court ignored them. In fact, with COVID breaking out, the case was not even decided by the end of June.
Key financial records only arose much later. House Democrats were not even in power anymore when they released a major report involving Trump violating the emolument requirements.
BTW, the Supreme Court allow emolument challenges run out of time & declared them moot once Trump was out of office.
The civil damages in Trump's sexual abuse & slander cases are nice. But he will appeal them for years, probably. Stephen Bannon stonewalled Congress. After a long process, he was convicted of doing so. His case is still being appealed.