And will Justice Breyer’s retirement, which is being officially announced today, affect the analysis? Consider:
- Despite conventional wisdom, I believe there is still a chance the case could be heard this term. (Correct me if I am wrong about this, but don’t cite the conventional wisdom.)
- Chief Justice Roberts is strongly against racial preferences.
- Justice Breyer’s seat is about to be filled with an openly affirmative action pick. We don’t yet know who it will be, but we know it will be a black woman because Biden promised that to Jim Clyburn in return for an endorsement before the South Carolina primary.
- Why would Chief Justice Roberts want a clear affirmative action pick sitting on this case? Even though Breyer would vote the same way, the optics — and the media focus on the inevitable dissent from the newly appointed affirmative action pick — might be something Roberts wants to avoid.
We’ll see. It’s a longshot, but if it happens, I’ll remind you of this post. If conventional wisdom is right, this post never happened.