WASHINGTON — Jonathan F. Mitchell, the architect of the Texas abortion law, recently filed a petition with the Supreme Court. He has taken positive action.
The submission sparked repentant admiration from supporters of race-conscious higher education admissions programs.
“This assignment offers conservative judges an enticing, elegant approach to dismantling affirmative action,” said Justin Driver, a law professor at Yale.
The Texas law Mr. Mitchell helped devise was diabolical, critics said, because it managed to isolate a ban on most abortions after six weeks of pregnancy from effective judicial review. His new friend-of-the-court briefing, on the other hand, made a simple point.
He told the judges that they do not have to decide whether affirmative action is barred by the constitution. All they have to do, he wrote, is apply the plain language of a federal civil rights law, Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by institutions receiving federal money.
The Supreme Court, which will hear arguments this fall in the appeals of the Harvard and University of North Carolina admissions programs, has long ruled that the statute reflects the Constitution’s equal protection clause. If an admissions program complies with the Constitution, the court said, it must also be legal under Title VI. That was a mistake, wrote Mr. Mitchell.
His argument rests on textualism, which is the dominant mode of legal interpretation in the Supreme Court today, and not just on the political right. “We are all textualists now,” said Judge Elena Kagan, a liberal, famously.
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Textualism focuses on the words of statutes legislators have enacted rather than their intentions or expectations. It can lead to results that please liberals, such as when the court ruled in Bostock v. Clayton County in 2020 that Title VII of the Civil Rights Act protected gay and transgender workers. The plain words of that provision, which ruled out gender discrimination, demanded the result, Judge Neil M. Gorsuch, a Conservative, wrote for the majority.
It didn’t matter, he wrote, that the lawmakers who voted for the statute didn’t understand that they were making a move for gay rights.
Shortly after the Bostock decision was made, Jeannie Suk Gersen, a Harvard law professor, wrote in The New Yorker that “the court’s opinion also contains some potential landmines for liberals” and that “there is reason to taking Bostock’s formalistic statements about discrimination will support a conservative decision to dismantle the race-conscious admissions policy.”
Last week, Professor Gersen said Mr Mitchell’s approach is “probably a compelling strategy for at least Justice Gorsuch and probably other judges” and “avoids more difficult constitutional questions, making it easier for the court to rule that considering race is unlawful upon admission.”
Mitchell’s letter, filed on behalf of America First Legal Foundation, a conservative group led by senior members of the Trump administration, said that “Title VI command is clear, unequivocal and absolute.”
The statute states: “No person in the United States shall be barred from participating in, denied the benefits of, or subjected to discrimination under any program or activity under federal law, on account of race, color, or national origin. receive financial support. †
In contrast, the 14th Amendment’s Equal Protection Clause says that “no state” shall “deny every person within its jurisdiction the equal protection of the laws.”
In the past, the Supreme Court has said the statute follows the Constitution, based on statements from lawmakers who voted for it.
“Examination of the extensive legal history of Title VI,” wrote Judge Lewis F. Powell Jr. in its controlling opinion in 1978 in Regents of the University of California v. Bakke, “reveals Congress’ intent to provide federal funding to entities that violate a prohibition of racial discrimination similar to that of the Constitution.”
Mr. Mitchell wrote that Justice Powell’s consideration of legislative history was both illegal and incomplete, as “there have been numerous ground statements by lawmakers who insisted that Title VI would indeed require color blindness, in accordance with the unambiguous legal text.”
In 2003, in Grutter v. Bollinger, the court upheld the race-conscious admissions program at the University of Michigan law school on constitutional grounds, adding in one sentence that it meant that a challenge under Title VI must also fail.
Taking legal history into account to determine what a statute means has fallen out of favor with the Supreme Court, said Professor Driver.
“In modern legal circles, textualism is on the rise and legal history has become almost verboten,” he said. “The order allows the court not only to use textualism on behalf of a right-wing agenda, but also to submerge non-textual judges from the 1970s. It may well turn out to be an irresistible twofer.”
Mr. Mitchell has not submitted his assignment on behalf of either party under the challenge of the admissions policy of Harvard, a private institution under Title VI. The University of North Carolina, a public institution, is subject to both Title VI and the Equal Protection Clause.
Mr Mitchell’s order will not please all of his usual conservative allies, many of whom would prefer a sweeping and permanent constitutional ruling. But Mr Mitchell urged the Supreme Court to avoid the constitutional issue, calling it “a much narrower question, as it is far from clear that the text and original meaning of the equal protection clause prohibits the use of corrective racial exclude preferences.”
A ruling based on the statute, he added, would, at least theoretically, leave open the possibility of further legislation. Harvard could also refuse federal money, Mr. Mitchell wrote.
Harvard, for its part, told the judges Congress is free to revise Title VI if it disagrees with the Supreme Court’s conclusion that it mimics the equal protection clause. “If Congress wanted to change Title VI to ban private universities from considering race in admissions, it could,” the letter said, “but it hasn’t happened.”