In Brackeen, Justice Barrett repeatedly faulted counsel for Texas and the adopting families. She wanted a "theory for rationalizing this body of law," and was not willing to connect the dots plotted by the lawyers. In Moore v. Harper, Chief Justice Roberts found that counsel for the legislative defendants failed to adequately argue that the decision of the North Caroline Supreme Court violated the Elections Clause. And the failure to present this argument allowed the Court to avoid deciding what standard ought to apply to the Election Clause. Roberts wrote this argument wasn't in their briefs:
We decline to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause. The legislative defendants did not meaningfully present the issue in their petition for certiorari orin their briefing, nor did they press the matter at oral argument.
And the position was disclaimed during oral argument:
Counsel for the defendants expressly disclaimed the argument that this Court should reassess the North Carolina Supreme Court's reading of state law. Tr. of Oral Arg. 7 ("We're not asking this Court to second-guess or reassess. We say take the North Carolina Supreme Court's decision on face value and as fairly reflecting North Carolina law . . . ."). When pressed whether North Carolina's Supreme Court did not fairly interpret its State Constitution, counsel reiterated that such an argument was "not our position in this Court." Id., at 54.
Roberts even faulted counsel for pivoting to the argument during rebuttal!
Although counsel attempted to expand the scope of the argument in rebuttal, such belated efforts do not overcome prior failures to preserve the issue for review. See this Court's Rule 28 ("[C]ounsel making the opening argument shall present the case fairly and completely and not reserve points of substance for rebuttal.").
Talk about persnickety–knocking counsel for raising an argument during rebuttal. When the Chief wants to reach an issue, he will do pirouettes. When he doesn't want to reach an issue, he will don a straightjacket. The Court of late has had a very fluid approach to oral argument. Top-side counsel may hold an argument in reserve for rebuttal, or the seriatim round. But Rule 28 is still on the books.
I am going to make an unpopular prediction about the affirmative action cases. Counsel for Students for Fair Admission declined to argue that the Title VI standard was different from the Equal Protection standard. This decision was strategic. They could have argued that Title VI imposed a more stringent standard, and dicta from Grutter suggesting the standard was the same should be overruled. But they did not choose this path. I think the Court will rely on Title VI to (a) reaffirm Grutter and Bakke on stare decisis ground, (b) hold Title VI is subject to the Grutter standard because the parties did not ask the Court to apply a different standard, and (c) rule for Harvard and UNC. I know, my prediction is very uncomfortable, but there it is. I have seen far too many criticisms of prominent conservative lawyers in decisions by conservative Justices. If this outcome happens, conservative lawyers will need to have a serious moment of reflection. Having a "6-3" Court is not enough. Arguments must cohere at all levels, and more narrow relief must be sought. Yes, there is an asymmetry, but those are the rules of the road for conservative cases. Governor DeSantis is not wrong. And progressives should thank President Trump.
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