Justices Thomas, Alito, Gorsuch, and Kavanaugh Are Active on the Cert Docket
Today the Supreme Court denied review in three high profile cases. In each case, Justices Thomas and Alito wrote separately. In two cases, Justice Gorsuch wrote separately. And in one case, Justice Kavanaugh would have granted cert. In all cases, Justice Barrett remained silent.
First, the Court denied cert in Boston Parent Coalition for Academic Excellence Corp v. The School Committee For the City of Boston. This case challenged the affirmative action policies of Boston Public Schools, where there as overt evidence of discrimination against Asian students. The First Circuit, following the Fourth Circuit’s lead in Coalition for TJ v. Fairfax County School Board, rejected the Fourteenth Amendment claim because Asian students were “still over-represented.”
Justice Gorsuch wrote a statement respecting the denial of cert in the Boston case. Here, Boston had changed its policy, and the plaintiffs had not challenged the new policy. Gorsuch observed:
Strictly speaking, those developments may not moot this case. But, to my mind, they greatly diminish the need for our review.As a result, I concur in the Court’s denial of the petition for certiorari.
In other words, the Court has a discretionary docket, and he did not think this case was a good use of discretion.
Justice Alito dissented from the denial of cert, joined by Justice Thomas. He explained that the case was not moot, due to the suit for nominal damages.
Boston later replaced the challenged 2021–2022 admission policy with a new policy that the Coalition does not challenge here. But, unlike respondents, I fail to see how that moots this case. First, the Coalition seeks nominal damages to redress the unconstitutional effects of the 2021–2022 admission policy. See Record 2103; Uzuegbunam v. Preczewski, 592 U. S. 279, 292 (2021).
Alito criticized his colleagues, again, for not addressing post-SFFA “defiance”:
We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions. I would reject root and branch this dangerously distortedview of disparate impact. The Court, however, fails to do so today, so I must respectfully dissent.
Recall that Justices Alito, Thomas, and Gorsuch would have granted the TJ Coalition an emergency injunction back in 2022, and Alito and Thomas (but not Gorsuch) have granted cert in that case in 2024. Justices Kavanaugh and Barrett are silent on this issue. The Court is now content to let these issues fester in the lower courts, as SSFA is ignored.
Second, the Court today denied certiorari in Wilson v. Hawaii. In this case, the Aloha state had a “may issue” carry regime that would violate Bruen. And the defendant was convicted of violating that law. But the Hawaii Supreme Court held that the defendant could not raise the unconstitutionality of the law, because he never applied for a carry license. Justice Thomas, joined by Justice Alito, wrote a statement respecting the denial of cert. They explained that the
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