SCOTUS 101: Racial Preferences, Student Loans, and Free Speech


SCOTUS 101: Racial Preferences, Student Loans, and Free Speech

Jun 30, 2023 28 min read

Commentary By

Zack Smith @tzsmith

Senior Legal Fellow, Meese Center for Legal Studies

GianCarlo Canaparo

Senior Legal Fellow, Edwin Meese III Center

Rudy Sulgan/Getty Images

The end of the term has arrived, and all the biggest cases came with it. Your hosts explain the Harvard and UNC cases, the challenge to Biden’s student loan bailout, 303 Creative, Groff v. Dejoy, and all the rest. There is no interview this week because of all the opinions, but no episode would be complete without trivia: it's surprising facts from the term's biggest opinions.

GianCarlo Canaparo: Welcome back to SCOTUS 101 and our last episode of the term before the summer break.

Zack Smith: I heard there might have been a few cases that came down this week, GC.

Canaparo: No, I don’t think so.

Smith: Yeah, it was quiet week at the court, right? Nothing big, nothing big.

Canaparo: Very quiet. Yeah, no, huge week at the court. The last one, we got all the big cases. We’ll talk about them all, but before we do, let me start with orders because we also had a final conference. So the court granted several cases. I’ll just hit some of the highlights in the interest of time. So the court took the Securities and Exchange Commission versus Jarkesy, which will decide whether you have a Seventh Amendment right to a jury trial when the Securities and Exchange Commission sues you in its in-house courts and I use that term loosely.

Smith: Oh, I think we’ll have some thoughts on this, GC.

Canaparo: Oh, yes. Next up we have United States versus Rahimi, which will decide whether a statute that bars people from owning a firearm if they have a domestic violence restraining order, but not a conviction violates the Second Amendment. And last up, McElrath versus Georgia, which raises a peculiar double jeopardy issue.

Smith: Well, we have a lot of opinions to cover this week most of the big ones I think we’ve been waiting for, and I’ll start things off with Moore versus Harper. This was a 6-3 decision by Chief Justice Roberts, and he was joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, where the court affirmed the decision of the North Carolina State Supreme Court when it found that a 2021 congressional redistricting by that state’s legislature was a partisan gerrymander in violation of the North Carolina Constitution.

Now, the state legislature had disputed the authority of the state court to void its plan based on the claim that the US Constitution’s Elections Clause gave the legislature nearly unfettered authority to regulate federal elections without interference by state courts. The majority concluded that the case was not mooted despite the newly constituted North Carolina Supreme Court vacating the prior decision of that same court and issuing a new decision because while the new state court opinion repudiated the conclusion that partisan gerrymandering violated the state constitution, it did not overrule the judgment against the use of the 2021 redistricting plan.

The majority then held that the Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections going all the way back to Marbury versus Madison and citing numerous other precedents including the more recent case from 2015 Arizona State Legislature versus Arizona Independent Redistricting Commission. The court said that while state legislatures prescribed the rules concerning federal elections, they remain subject to the ordinary exercise of State judicial review. The court has previously dismissed the argument that the Elections Clause divest state constitutions of the power to enforce checks against the exercise of legislative power and historical practices confirm that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause.

So the court said it need not decide whether the State Supreme Court stayed within the limits derived from the Elections Clause since that issue was not meaningfully presented to the court. Justice Kavanaugh joined the majority’s opinion, but he also filed a separate concurrence saying that while state laws governing federal elections are subject to ordinary state court review, because the Elections Clause assigns federal authority for elections to state legislatures, state courts do not have free reign in conducting that review. Justice Thomas filed a dissent and he was joined in full by Justice Gorsuch and in part by Justice Alito, where he argued that this case became moot when the newly constituted North Carolina Supreme Court vacated its own prior decision and issued a new one.

Canaparo: Next up was Counterman versus Colorado. This was a 6-3 decision by Justice Kagan joined by Roberts, Alito, Kavanaugh and Jackson in full and in part by Sotomayor and Gorsuch where the court held that in true threats cases, the state must prove that the defendant had reckless disregard for the threatening nature of his speech.

So the petitioner here Counterman sent hundreds of Facebook messages to CW who was a local musician. Some of them suggested that he was surveilling CW, others were overtly threatening. CW contacted the authorities and Counterman was charged with violating a state law that prohibits repeatedly communicating with another person in a manner that causes the person to suffer serious emotional distress.

Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not true threats. He argued that the statute required showing that he actually had the subjective intent to threaten. The Colorado Supreme Court disagreed applying an objective reasonable person standard and upheld Counterman’s conviction.

The Supreme Court reversed agreeing with Counterman that the state must prove in true threat cases that the defendant had some understanding of his statements threatening character. The court also held that a recklessness standard is sufficient for First Amendment purposes. “The purpose of a subjective mental state requirement,” Kagan wrote, “is to avoid what is often called a chilling effect.” That is the self-censorship that can accompany different kinds of speech prohibitions. So Kagan likened the subjective mental state requirement for true threats to a similar requirement regarding other categories of unprotected speech like defamation, obscenity and incitement to unlawful conduct. “The intent element appropriate true threat cases,” she wrote, is recklessness.” That is whether the speaker made the statements despite being aware that others could regard them as threatening.

Sotomayor wrote a separate opinion joined in part by Justice Gorsuch concurring in part and in the judgment. She agreed that a subjective mental state requirement is appropriate but would limit requiring a recklessness standard to cases like this one that involves statements made as part of a course of stalking.

Thomas dissented arguing that the court should apply the First Amendment as it was understood at the time of the founding rather than relying on precedents such as New York Times versus Sullivan that depart from that understanding. Justice Barrett joined by Justice Thomas also dissented. Her straightforward position was that true threats are not protected by the First Amendment and that like nearly every other category of unprotected speech, they may be restricted using an objective standard.

Smith: Next up we have Mallory versus Norfolk Southern Railway Company. Justice Gorsuch wrote the majority opinion and he was joined in full with respects to parts one and 3B by Justices Thomas, Alito, Sotomayor and Jackson, and he was joined with respect to parts two, 3A and four by Justice Thomas, Justice Sotomayor and Justice Jackson.

Now in this case, the court held that an Ohio resident may sue the Norfolk Southern Railway in Pennsylvania where Norfolk Southern has agreed to be sued for its part in the cancer related injuries, which Mallory claims were work related. Norfolk Southern claimed that the due process clause protected the company against being sued in Pennsylvania for injuries that were alleged to have occurred in Ohio and Virginia. The court though rejected that defense ruling that the due process clause does not bar state from requiring an out-of-state corporation to consent to personal jurisdiction over lawsuits to do business there. As Justice Gorsuch explained both in 1789 and in 1868, Anglo-American law tradition limited a tribunal’s authority to only the territorial limits of the sovereign that created it for in rem actions involving immovable real property, that it allowed an in persona tort lawsuit to be brought wherever a defendant could be found, sometimes called tagged jurisdiction.

In the case of artificial persons like corporations, the federal and state governments adopted different approaches to jurisdiction. More than a century ago, the court held in Pennsylvania Fire Insurance Company of Philadelphia versus Gold Issue Mining and Milling Company, which was a 1917 case that the due process clause permitted suits against individuals in any jurisdiction where they could be found no matter where the underlying cause of action occurred and that it made no sense to treat a fictitious corporate person differently.

Norfolk Southern had agreed to be sued in Pennsylvania as a condition of doing business there. So according to the court, Pennsylvania Fire controlled this case and no later Supreme Court decision including International Shoe Company versus Washington, which was a 1945 case was to the contrary.

Justice Jackson wrote a concurring opinion stressing that Norfolk Southern had waived any due process objection by registering as a Virginia headquartered business in Pennsylvania.

Justice Alito wrote an opinion concurring in part and concurring in the judgment. He agreed that Pennsylvania Fire controlled this case and saw no persuasive justification for overruling it. He emphasized however that Norfolk Southern’s objection to Pennsylvania’s exercise of jurisdiction could be addressed on remand under the commerce clause.

Justice Barrett wrote a descending opinion in which she was joined by Chief Justice Roberts and Justices Kagan and Kavanaugh arguing that the court’s 1945 decision in International Shoe prohibited a state from exercising jurisdiction solely on the ground that a company had signed a consent to be sued form to do business in a state.

Canaparo: Next up is Students for Fair Admissions versus Harvard and versus University of North Carolina. These two cases challenged the use of race in admissions at the universities and the court held that the use of racial preferences are prohibited. The decision was written by Chief Justice Roberts. It was 6-2 in the Harvard case, Justice Jackson did not participate, and 6-3 in the UNC case where she did.

The court said that the admissions processes at both Harvard and UNC incorporate an applicant’s race throughout the process for many of the applicants race is determinative. The court summarized the history of its equal protection jurisprudence and held that schools must admit students on a racially non-discriminatory basis. One of the takeaway lines was that the court held that every student must be treated based on his or her experiences as an individual not on the basis of race.

For about a hundred years, universities have been using race as some component of their admissions. This really started in the 1920s with Harvard incidentally using various devices to reduce the number of Jewish students that it had.

For about 50 years, the Supreme Court has tolerated this behavior in a court case called Bakke, a split decision very badly split. The court upheld the use of race but didn’t have a clear reason why. Some justices said we don’t want universities to be able to use race. Some said we do on the theory that they can sort of remediate societal discrimination by giving preferences to some groups. And one justice, Justice Powell said, “I don’t buy this remediation rationale, but I do believe that racial diversity is a component,” of what he called genuine diversity. Now, genuine diversity in Justice Powell’s telling is diversity of thought and philosophy and experience and ideology, and he said that race is one component of that.

That became the Supreme Court’s rule in a case called Grutter where it held that universities could use race as part of their admissions process, giving a plus factor to some people. The implication of course, which the Supreme Court now recognizes is that a plus factor in a zero sum game for some people like admissions is a minus factor for others. In Grutter, the court also said that the use of race and admissions had to have an end date. Reviewing what Harvard and UNC do here, the court held that their practices fail all of Grutter’s requirements.

So first of all, both universities fail to operate their race based admissions programs in manner which is sufficiently measurable to allow judicial review under strict scrutiny. The interests they view as compelling such as training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas and preparing engaged and productive outlooks are the court said commendable but not sufficiently coherent for courts to be able to measure any of these goals or to know when they have been achieved so that racial preferences can end.

The universities use racial categories to measure the racial compositions of their classes in some instances which are over broad, such as not distinguishing between South Asians or East Asians, sometimes in ways which are arbitrary or undefined. So there’s no definition for Hispanic and sometimes the categories are under inclusive. There’s no category at all for Middle Easterners. They just seem to sort of fit under white or who knows.

The university’s response to all of this criticism was essentially, trust us, we are experts in knowing what is necessary for diversity on campuses, but the Supreme-

Smith: Huh.

Canaparo: Well. But the Supreme Court held that deference to their decisions must exist within constitutional limits and that schools have failed to justify separating students on the basis of race. This court also held that these admissions policies fail under the Equal Protection Clause’s twin commands that race must never be used as a negative and that it may not operate as a stereotype.

The evidence here showed that the college’s assertion that race is never a negative factor can’t withstand scrutiny. It’s simply a mathematical impossibility because you have a zero sum game. So anytime that you give one person a benefit on the basis of his race, you are giving somebody else a detriment on the basis of hers. Moreover, the admissions policies were based on, and I quote, “The offensive and demeaning assumption that students of a particular race because of their race think alike.”

The universities also offered no logical endpoint to their racial discrimination something Grutter to requires. They argue that their use of race will end when there is meaningful representation and diversity on college campuses, but the court rejected this argument because the university’s racial balancing was unconstitutional and periodic review cannot make unconstitutional conduct constitutional.

The court held that universities may consider an applicant’s discussion of how race affected his or her life as long as the discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university, but it held that universities may not make the color of an individual’s skin the touchstone of his or her identity.

Thomas wrote a concurring opinion. It is his magnum opus. I encourage you to read it. You get the sense very much that he has been waiting to write this for his entire career.

Smith: Well, GC, I’m a little biased. I love Justice Thomas and his writing, but I think this really should be required reading for any law student and really anyone who cares about the law are equal protection under the law going forward.

Canaparo: Right, right. So he did several things with his opinion. Number one, he gave an originalist defense of the colorblind constitution. He explained that all forms of discrimination on the basis of race, including so-called benign or beneficial discrimination are prohibited under the Constitution and he spent some time emphasizing the pernicious effects of such discrimination.

Now, one of the things which is really interesting about these opinions is that the diversity rationale really was what Harvard was arguing. Harvard and UNC did not claim that they could pin what they were doing underneath the remediation rationale, and the reason they didn’t is because they really can’t. There are limits on the nature of the remedial rationale. You have to be the person who did the harm. You must identify a concrete harm and you must show how the person you are giving a benefit to actually suffered that concrete harm.

But what Harvard and UNC have tried to do is essentially remedy what they perceive to be societal discrimination and yet although the remedial rationale was not at issue in the case, it is almost the exclusive focus of the dissenting opinions which gave Justice Thomas a platform that he has not otherwise had in other cases where the remedial rationale has not been raised to take it on head on and it’s masterful. I won’t try to summarize the whole thing here in the interest of time, but I will put a link in the show notes to a short op-ed of mine where I do.

Moving on to Justice Gorsuch’s concurring opinion, Thomas joined him and he argued that in his view, the Equal Protection Clause was not the right way to decide this case. Title VII of the Civil Rights Act was the most straightforward way to resolve the case. The reason that the case was not resolved on that basis is because all those years ago in those earlier affirmative action cases, the court said that whatever Title VII means it’s just co-extensive with the Equal Protection Clause so the court decided not to revisit that holding today.

Justice Kavanaugh concurred to further explain why in his view the court’s opinion is consistent with and follows the court’s earlier affirmative action cases, specifically, he focused on the fact that Grutter had a time limit built into it and that essentially the time has passed.

Justice Sotomayor dissented joined by Justices Kagan and Jackson as to UNC only in which she accused the majority of rolling back decades of precedent and momentous progress. She said that by banning the use of race in college admissions, the majority cements its superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. Finally, she argued that this decision subverts the constitutional guarantee of equal protection by entrenching racial inequality in education.

Last up, Justice Jackson dissented only in the UNC case joined by Justices Sotomayor and Kagan arguing that our country has never been colorblind and claiming that the majority’s opinion stunts progress and has no basis in law, history, logic or justice.

Smith: Do you see, not to belabor this case, but it certainly seemed like the language used by the Chief Justice, the language used by Justice Thomas was a little more pointed toward Justice Jackson’s dissent-

Canaparo: Yes.

Smith: Than usual a little spicy even by Supreme Court standards these days. What do you make of that?

Canaparo: Yeah, so what’s really going on, especially between, well, Justice Jackson definitely overplayed the hand. When you read her opinion, you will not find an opinion of law, right? She cedes all the legal arguments to Justice Sotomayor. She says, Justice Sotomayor makes good legal arguments. I’m not really going to do that, and what she engages in is sort of-

Smith: Emoting.

Canaparo: Yeah, emoting. Yeah, I think that’s that is fair. What it is really is it’s a policy based argument about how to solve race issues in America. She makes a lot of assumptions about sort of the causes of racial disparities, right? She assumes that they’re all caused by historical discrimination and that the way to solve them is that to engage in color conscious discrimination going forward. This is really, it was a sort of more polite restatement of Ibram X. Kendi’s rule that, and I quote from him, “The way to cure past discrimination is with present discrimination and the way to cure present discrimination is with future discrimination.”

Smith: Well, I agree. It certainly read more like an op-ed, a lengthy op-ed than a legal opinion, which is not something a Supreme Court justice should do.

Canaparo: I agree.

Smith: Excellent. Next up we have Abitron Austria GmbH versus Hetronic International, Inc. This was an opinion by Justice Alito and he was joined by Justices Thomas, Gorsuch, Kavanaugh and Jackson, where the court held that provisions of the Lanham Act, a federal law prohibiting trademark infringement do not apply extra territorially. They extend only to damage claims where the infringing use in commerce is domestic. As Justice Alito explains, there’s a presumption that American law does not apply in foreign sovereign territory, and there is a two-step process to deciding whether a particular law applies extra territorially.

Step one, ask if there is an affirmative and unmistakably clear textual statement that a statute applies beyond our shores. If yes, that ends the inquiry. If no, courts move to step two, it requires a court to identify the quote, “Statutory focus of congressional concern underlying the provision at issue and then determine whether the conduct relevant to that focus occurred in the United States territory.” Step two applies the presumption against extraterritoriality to claims that involve both domestic and foreign activity separating the activity that matters from the activity that does not.

In this case, Justice Alito concluded that the Lanham Act’s text does not clearly apply the act extra territorially and that the act’s focus was on domestic, not worldwide consumer confusion. Accordingly, a plaintiff cannot recover damages for extraterritorial injuries.

Justice Jackson wrote a concurring opinion elaborating on the meaning of the Lanham Act term quote, “Use in commerce.”

Justice Sotomayor joined by Chief Justice Roberts and Justices Kagan and Barrett wrote an opinion concurring in the judgment contending that step two turned solely on whether American consumers could be confused by trademark infringement even if the infringing conduct and injury occurred elsewhere.

I’ll keep things going with the next case, Groff versus DeJoy. This was a unanimous decision written by Justice Alito where the court held that the undue hardship exception to Title VII’s requirement that employers accommodate their employee’s religious practice can only be invoked if the employer demonstrates that the accommodation will result in a substantial burden in the overall context of an employer’s business.

Joe Groff is a Christian and was not required to work on Sunday when he began working for the US Postal Service in 2012. After an agreement with Amazon to increase Sunday deliveries, however, the postal service began discipline Groff even though he successfully made arrangements with coworkers that allowed him to continue exercising his faith by not working on Sundays. Groff sued under Title VII, which requires employers to accommodate employees religious practices unless it would cause an undue hardship on the employer’s business.

While the court’s decision in Trans World Airlines versus Hardison, a 1977 case referred to both de minimis and substantial burdens, Justice Alito explained lower courts have latched onto the de minimis language as the governing standard. On that basis, the district court in third circuit granted summary judgment to the postal service.

The Supreme Court, however, held that Hardison’s reference to substantial burdens better explains the decision. He said, “The court therefore understands Hardison to mean that undue hardship is shown when a burden is substantial in the overall context of an employer’s business.” This fact specific inquiry comports with both Hardison and with the meaning of undue hardship in ordinary speech.

Finally, the court held that Title VII requires that an employer reasonably accommodate an employee’s religious practice, not that an employee’s specific accommodation request itself be reasonable. The court vacated the third circuit’s judgment and remanded the case for the context-specific application of its clarified standard.

Justice Sotomayor joined by Justice Jackson concurred agreeing that the statutory standard is undue hardship, not trivial cost, noting that stare decisis has enhanced force and statutory as opposed to constitutional cases. Sotomayor agreed that clarifying what Haron actually said, rather than over ruling it was the proper way to handle this case.

Canaparo: And next up were the student loan cases. The takeaway here is that if you took out student loans, you’re going to have to pay them back.

Smith: What a novel concept.

Canaparo: So first up, Biden versus Nebraska. Remember, there are two cases some individual borrowers sued and several states sued to block Biden’s loan cancellation plan. Biden versus Nebraska was a 6-3 decision by the Chief Justice joined by Thomas, Alito, Gorsuch, Kavanaugh, and Barrett holding that A, Missouri had standing to challenge Biden’s student loan cancellation plan, and B, that the Emergency power statute, the Heroes Act that Biden relied on, does not authorize loan cancellation.

Now, you’ll probably recall Biden claimed that his Secretary of Education had the power to cancel about $430 million of federal student loans under a statute that allows him to waive or modify statutes and regulations governing student loans during a national emergency. They pointed to the COVID-19 emergency. Now, Missouri and several other states sued alleging that this was an abuse of power. Missouri argued that it had standing because it operates a state agency MOHELA that services student loans and is paid on a per loan basis.

The Supreme Court agreed saying that MOHELA is an instrumentality of the state and that its lost revenue because of canceled loans is necessarily a direct injury to Missouri itself. On the merits, the court held that the plain text of the Hero’s Act does not authorize the program. Modify, it held, carries a connotation of increment or limitation and must be read to mean to change moderately or in minor fashion. The court also held that the Major Questions doctrine was implicated because given the history and breadth of the authority asserted by the president here, the court has reason to hesitate before concluding that Congress meant to confer such authority.

Justice Barrett concurred to explain that the Major Questions doctrine reinforces the statutory conclusion but is not necessary to it. She also explained that she does not see the Major Questions doctrine as inconsistent with Textualism as Justice Kagan did in her dissent in West Virginia versus EPA. Justice Barrett understands it, and I quote, “To emphasize the importance of context when a court interprets a delegation to administrative agencies. It is a tool for discerning, not departing from the texts most natural interpretation.”

Justice Kagan joined by Justices Sotomayor and Jackson dissented to argue that none of the states has standing and that on the merits the administration had the power it claimed. In her view the fact that MOHELA is an independent agency meant that the state could not sue on its behalf. And on the merits, she argued that the court’s understanding of the words waive or modify was, and I quote, “Stilted.” She also argued contra Justice Barrett that the Major Questions doctrine was a way for this court to negate broad delegations that Congress has approved.

Then in the Department of Education versus Brown, the individual borrower’s case, the unanimous Supreme Court in an opinion by Alito said that the individual plaintiffs don’t have standing. The plaintiffs there argued that they were denied procedural notice and comment rights because the Secretary of Education did not create the plan through the usual administrative Procedure Act process, and that if the secretary had followed the EPA, they might have convinced him to make a new plan based on another statutory regime which would have given them forgiveness for their loans.

The court rejected this argument because of a lack of what it calls traceability, which is part of the standing doctrine. The court said, and I quote, “The plaintiffs cannot show that their purported injury of not receiving loan relief under another statutory regime is fairly traceable to the department’s allegedly unlawful decision to grant loan relief under the Hero’s Act.” So they couldn’t have standing, but ultimately the plan goes down anyway.

Smith: All right, and last up, we have the long awaited decision in 303 Creative. This was an opinion by Justice Gorsuch where he was joined by the Chief Justice and Justices Thomas, Alito, Kavanaugh and Barrett, where the court held that the First Amendment prohibits the state of Colorado from forcing a website desire to create expressive designs, speaking messages with which she disagrees.

Website designer Lori Smith sought to expand her design business, 303 Creative LLC to include wedding websites, but sought a pre enforcement challenge against Colorado on its anti-discrimination act on First Amendment grounds to ensure that she wouldn’t be forced to create wedding websites for same-sex couples. Now, Colorado’s Anti-Discrimination Act prohibits all broadly defined public accommodations from denying quote, “The full and equal enjoyment of its goods and services to any customer based on among other things his or her sexual orientation.” While Lori Smith will serve everyone regardless of their sexual orientation, she won’t produce content that contradicts biblical truth as that would require use of her expressive design services to convey a message with which she disagrees.

Both the District Court and the 10th Circuit held that Smith was not entitled to the injunction she sought, but fortunately, the Supreme Court reversed. Justice Gorge cited the court’s long-standing line of First Amendment cases, including West Virginia Board of Education versus Barnette, a 1943 case for their proposition that quote, “If there’s any fixed star in our constitutional constellation, it is the principle that the government may not interfere with,” quote,”an uninhibited marketplace of ideas.”

The cases Gorsuch wrote illustrate that the First Amendment protects an individual’s right to speak his or her mind regardless of whether the government considers his or her speech sensible and well-intentioned or deeply misguided. Gorsuch concluded that the websites were clearly a form of expressive speech and rejected Colorado’s arguments because if adopted, they would allow the government to force all manner of artists, speech writers and others whose services involve speech to speak what they do not believe on pain of penalty.

Gorsuch wrote that public accommodation laws have recently been expanded in notable ways, but that no public accommodation law is immune from the demands of the Constitution. The court rejected Colorado’s monopoly of one argument that Smith’s voice was so unique, it required compulsion of her creation of same-sex wedding websites because all artistic voices are unique in their own right.

It also dispatched with the state’s alternative argument that her services were merely commercial products. It said quote,” The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is reversed.

Justice Sotomayor filed a descending opinion and she was joined by Justices Kagan and Jackson where she argued that Colorado’s anti-discrimination act targets conduct not speech for regulation and that the act of discrimination has never constituted protected expression under the First Amendment. She said quote, “Our constitution contains no right to refuse service to a disfavored group.” Fortunately, she lost that argument.

Canaparo: Well, that is it for a blockbuster of a week. We don’t have an interview for you this week, however, we do have trivia, a slightly unusual form of trivia. We wanted to highlight interesting tidbits from some of the major opinions this week. I had a couple, Zack had a couple, so I’m going to quiz Zack and then Zack’s going to turn around on me.

Smith: All right, GC kick off the show.

Canaparo: All right. Number one, this Zack is going to tell the listeners how faithfully you follow the things I write and whether you remember what I write.

Smith: Oh, boy. Well, you write good stuff, GC. I’ll give you credit for that. So who knows, maybe maybe I’ll have good luck in this week’s trivia.

Canaparo: All right. Number one in the Harvard UNC case, Justice Thomas discusses the empirical evidence on the mismatch effect, the phenomenon that lowering admission standards for racial minorities actually tends to reduce the number of minorities entering academia and other high paying professional jobs. In response, Justice Sotomayor said that the mismatch effect had been debunked long ago. Is she right or wrong?

Smith: Of course she’s wrong. She said that’s always a safe bet, knock on wood, but I think you actually wrote about this back in February.

Canaparo: Well, done. Yeah, I did.

Smith: When the briefs came out. See, I do read some of your stuff. So why don’t you tell us why she’s wrong.

Canaparo: Yeah, absolutely. So I did write about this in February. A bunch of the Amicus briefs, the one she cites for this proposition claim that a mismatch was debunked long ago by a book called The Shape of the River. Now, the book did purport to disprove mismatch, but the book itself was riddled with methodological errors and serious doubts about its accuracy. The authors still to this day refuse to make the data they use public, but in fact, some of the data which was available in the book actually confirmed the mismatch hypothesis, and in the many decades since that book, many other studies have shown evidence of it as well to such an extent in fact that even many scholarly proponents of racial preferences admit that mismatch exists and that racial preferences should be carefully tailored not to raise it or to minimize it.

Smith: Very interesting. All right, GC, here’s your next question.

Canaparo: Okay.

Smith: I think you’ll know this one, but two recent guests of SCOTUS 101 were cited in the Harvard and UNC cases. Who were the guests and what were they cited for?

Canaparo: Yes, indeed. Professor Gail Heriot, who was with us earlier this term for her research into segregated orientations, housing and graduation ceremonies on college campuses, and of course, Professor David Bernstein for his research into the origins and arbitrariness of America’s racial categories.

Smith: All right, GC. I know you said we were going to turn the tables and you’d asked me a few questions, but you’re on such a hot streak. I have just one or two more for you there.

Canaparo: Okay, okay.

Smith: So let’s keep it going. Let’s see if you can end on a high note. Now, I saw something interesting on Twitter after the Harvard and UNC cases came out and it said the chief justice in his majority opinion had actually used a new citation signal that hasn’t been used. It’s been used before, but not for many, many years. What is that citation signal and what is it used for?

Canaparo: So I’m not on Twitter, so I’m at a disadvantage, but I did notice it. I think it’s sember or semper.

Smith: Yeah, close. It’s semble, S-E-M-B-L-E.

Canaparo: Semble. But I have no idea what it means.

Smith: Yeah, so apparently it hasn’t been used for many, many years, and the rough Twitter consensus, take that for what its will, basically means that the judge thinks the case sort of stands for the proposition he cites it for, or maybe the proposition was cited in dictum in the case or something like that. But it’s been many, many years since this citation has been used, and in fact, it looks like the last time this citation has been used before the Chief Justice used it today was in 1971 when Justice Harry Blackmun used it.

Canaparo: Fascinating. Yeah.

Smith: It was interesting. It was interesting. All right, GC, you’re on a hot streak today. You’re doing well, so let’s end the season on a high note.

Canaparo: Okay, well, we’ll try.

Smith: All right. Now, Justice Jackson in her dissent in the UNC case, of course, she was recused from the Harvard case. She cited a very interesting statistic that was cited in one of the amicus briefs where she claimed that high risk Black babies had a higher chance at survival if their doctors were also Black instead of white. And so I’m curious if you saw that citation, and if so, why Justice Jackson was wrong to cite that.

Canaparo: Well, I mean did see it, she’s wrong because the statistic is bunk.

Smith: Yeah, that’s absolutely right, and in fact, Ted Frank has a fantastic Twitter thread on this where he explains why the statistic is bunk, why it’s shocking in some ways that Justice Jackson actually cited this dubious statistic, and so I encourage everyone to go look at that tweet thread because it’s a fascinating discussion.

Canaparo: Yeah, a good reminder, both Justice Jackson’s use of that stat and Sotomayor’s use of the other that maybe judges shouldn’t be deciding cases on the basis of social science.

Smith: That is a shocking revelation GC. Do you mean to say they should stick to the law?

Canaparo: I know it’s revolutionary.

Smith: It really is. It really is. You’re such a radical. Well GC, it’s been a fantastic season. I’ve enjoyed it thoroughly. A lot of big cases, certainly this year, but also this past week. What are you going to do during your summer recess?

Canaparo: I haven’t even got that far.

Smith: Yeah, it certainly has been a sprint to the finish this year, but this is our final show for this term of the court. Thank you to everyone for listening. We are going to take a summer hiatus along with the court, but please stay tuned next term when things get going again. And in the meantime, please be sure to subscribe on Spotify, Apple Podcasts or wherever else you listen, and as always, we’d appreciate it left us a five star rating.

Canaparo: You can follow us on Twitter @SCOTUS101 and email us at SCOTUS101 at with your questions, comments, or ideas for future shows.

Smith: See you in October, GC.

Canaparo: Have a wonderful summer.

Smith: You as well.

SCOTUS 101 is brought to you by more than half a million members of The Heritage Foundation, executive produced by GianCarlo Canaparo and Zack Smith, sound designed by Lauren EvansMark Guiney, and John Popp