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Supreme Court Delays Whether To Review Harvard Anti-Asian Discrimination Case, Seeks Biden Admin Position

Supreme Court Delays Whether To Review Harvard Anti-Asian Discrimination Case, Seeks Biden Admin Position

“The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States”

One of the most awaiting Supreme Court determinations is not even in a case under review, it’s whether the court will accept for review the Harvard Anti-Asian Discrimination Case.

In that case, which the students lost at both the trial court and appeals court levels, Asian-American applicants allege that Harvard discriminates against them through manipulation of soft factors, and minimizing standardized testing as an admission tool. We covered the case since inception:

SCOTUS was expected to rule today whether to grant the Petition for Writ of Certiorari (i.e. for review), but instead issued an Order “inviting” the Biden Solicitor General to weigh in. The Trump administration sided with the Asian-American students, but the court wants to know the Biden administration position before it decides whether to take the case:


The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States.

It’s hard to know what this means, other than that the case is not on a fast track. There was no timeframe put on when the Biden Acting Solicitor General needs to file a brief.

Various commenters have different takes on what it means.


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Since I am not a lawyer of any sort, much less a constitutional expert, can anyone in the comments thread help me understand why the USSC would need to have the administration weigh in? Aren’t they supposed to rule on the constitutionality of laws Independent of outside influences?

    Yes, that was my question too. The position of the administration, either pro or con, should not matter. They are supposed to be a separate branch of the US government.

    Brave Sir Robbin in reply to TrickyRicky. | June 14, 2021 at 1:53 pm

    ” why the USSC would need to have the administration weigh in? ”

    Shrewd move from a political point of view. It forces to administration to choose constituencies.

    Lastly, they could be eyeing a precedent or reversal or major modification of an earlier ruling that could have ramifications of execution of current rules and regulation and so want the executive enjoined in a proceeding they would likely not want to be involved in as there will be much pressure to take a side contrary to the Plaintiff which is a constituency the Democrats are aggressively developing.

    Milhouse in reply to TrickyRicky. | June 14, 2021 at 5:17 pm

    No. On important cases to which the USA is not a party, they are supposed to Call for the Views of the Solicitor General before deciding whether to grant cert. (There’s a more detailed discussion here, but you have to know how to work your way around a paywall.)

    ebola131 in reply to TrickyRicky. | June 14, 2021 at 6:51 pm

    Simple answer is YES.
    Scrotus ignored valid election fraud cases….tells you everything you need to know.
    Ammo up; the warz a comin.

They want the Administration to give them permission as to how to vote

They are terrified of court packing, terrified of not being “woke”, terrified to make a constitutional decision…

There is no SCOTUS anymore

    artichoke in reply to gonzotx. | June 14, 2021 at 10:43 am

    It doesn’t make much sense that, to avoid court packing, they would act like they’re already packed. But stranger things have happened.

    The odd string of non-obvious 9-0 decisions is a disturbing change. Aren’t these cases debatable? Does SCOTUS no longer write dissents? It’s not your daddy’s SCOTUS anymore, it’s much worse. It’s an opaque group of 9 unaccountable bureaucrats with life terms.

      The Friendly Grizzly in reply to artichoke. | June 14, 2021 at 10:53 am

      My daddy ‘s court was already bad. The Warren Court.

      CapeBuffalo in reply to artichoke. | June 14, 2021 at 11:31 am

      Perhaps they have read the DC tea leaves and are trying to hold out until the unholy alliance of a Democratic Congress and a Democratic proxy presidency are partially neutered in 2022. Right now the Dems are proposing actions that are warranted by either an overwhelming mandate or wartime. Essentially, they are trying to force a political coup that can’t be overcome. Perhaps the court is keeping its powder dry.

        Subotai Bahadur in reply to CapeBuffalo. | June 14, 2021 at 5:10 pm

        You are making the assumption that the Court believes that “the unholy alliance of a Democratic Congress and a Democratic proxy presidency” can be limited electorally. With the contested election that the Court already declined to involve itself in that fit Article III section 2 exactly; faith in elections surely has to be limited on that bench.

        Subotai Bahadur

      “The odd string of non-obvious 9-0 decisions is a disturbing change.”
      Haven’t researched recently but read about 10 years ago that about 80% of SCOTUS decisions are unanimous or 8-1. It’s only the 5-4, usually social decisions, that get media attention.

    Milhouse in reply to gonzotx. | June 14, 2021 at 5:20 pm

    That is stupid. The supreme court routinely calls for the solicitor general’s views before deciding whether to grant cert on important cases to which the government is not a party and hasn’t already chimed in. It doesn’t have to, but it is completely normal for it to do so, so your reading such a bizarre thing into it is uncalled for.

2smartforlibs | June 14, 2021 at 11:25 am

So much for an independent court that rules on Constitutionally.

This case will present a thorny problem for the Roberts court. The racist criminal enterprise called Affirmative Action requires white heterosexual Christian males to be the sole target of demonization and dehumanization. Everyone else to be the powerless victims. It is a diabolical machine that has brought profit and power to some of the most evil persons in history.

But the Harvard case pits Official Victims of Heterosexual Christian White Male Supremacy (Asians) vs. Official Victims of Heterosexual Christian White Male Supremacy (blacks, Hispanics). How will the Roberts Court please their Communist slavemasters when both sides are willing to attack them if they lose the case?

The short answer is: they can’t. What Roberts and the rest of the Franz von Papen Republicans on the court don’t realize is that purges and waves of mass hysteria are an absolute necessity for a Communist dictatorship to grow and thrive. There is no ruling the Roberts Court can make in this case that will not enrage the genocidal maniacs that make up the country’s leadership, who will then call for swift and terrible retribution. And thanks to the Roberts Court’s willingness to aid the Biden* coup they will be able to carry out their retribution.

“The price of cowardice will only be evil.” – Aleksandr Solzhenitsyn

    If they have a verdict against Harvard ready to be read in 2023 should the Republicans retake the senate than this makes sense. Why sentence the entire nation to a rubber stamp Supreme court that will overturn any verdict Democrats don’t like, or laws Democrats don’t like when waiting 2 years will let them issue the verdict without consequences from helpless Joe who no longer has 50 votes + Kamala?

My guess is the invitation was extended as a courtesy to the new administration; the case is important since it squarely addresses the use of “soft” factors to manipulate the racial makeup of student bodies and the SG’s input will be taken into consideration at the cert stage and again on the merits if cert is granted.

They are hiding out until some future time when they can rule according to the old rules that favor the liberals. Waiting until it’s safe again. Did you see the uprising in Nov and again in Jan 6?

I think it’s time to discuss court packing by Conservatives. How about adding 100 more for good measure. Let’s start be designing the stadium version of SCOTUS to seat all the Conservatives that need to be added.

2smartforlibs | June 14, 2021 at 1:16 pm

I want the best adn brightest to solve the problem we face. I don’t want TOKENS and that’s what we get when we don’t promote the best and brightest.

I hope what this means is they have a verdict against Harvard ready but are waiting for the GOP to retake the senate so Biden can’t pack the courts in response.

Dusty Pitts | June 14, 2021 at 1:47 pm

By the time the Biden maladministration has its say, SCOTUS will want to hear from his successor, and so on…

Are the petitioners seeking damages of the sort that kept another case from being moot when the plaintiff graduated?

Maybe they need to check in to see how either decision will play in Peking.

henrybowman | June 14, 2021 at 2:30 pm

“the court wants to know the Biden administration position before it decides whether to take the case”

Profiles in courage.

Antifundamentalist | June 14, 2021 at 2:50 pm

Asking Daddy for permission to go to the prom? The Supreme Court is NOT answerable to the Executive Branch, its Job is to keep the other two branches in check! the handbasket is already in hell and flames have ignited.

    Nobody suggested it’s answerable to the executive branch. However it is absolutely routine for it to consult the executive branch on whether a question is important enough to warrant cert. There is no permission being asked, and there is nothing at all unusual about it.

      Vladtheimp in reply to Milhouse. | June 14, 2021 at 7:53 pm

      Maybe you, and we, should question, from a Constitutional perspective, Why it is ‘absolutely routine’ for the Court to decide to consider a case based on “consultation” with one Party. Is it political precedent?

      Love to hear your explanation since you give them so regularly.

        artichoke in reply to Vladtheimp. | June 14, 2021 at 8:58 pm

        The usual procedure is that judges have the parties do the legal work for them, then pick the arguments for their rulings from the briefs of the side they declare the winner. More or less anyway. Such are the magic and motivations of the adversarial legal system.

        Now they’ve got a new group of lawyers that they can “allow” to do even more work for them.

Archie Smaltz | June 14, 2021 at 8:52 pm

Since the court already knows what the Biden admin’s position is I think it safe to assume this is a delaying tactic. I’d go further to say I think the court is trying desperately to stay united hence the recent 9=0 decisions. Why would that be? I think because they know the issue of cheating in the last election will inevitably wind up in front of them no matter how hard they try to avoid it. That plus the fear of court packing is forcing the ideological members of the court to join ranks in protecting the institution of the court. The left, right, and what passes for the middle in this court are united in wanting to protect the institution.

    artichoke in reply to Archie Smaltz. | June 14, 2021 at 9:01 pm

    They imagine there’s an institution there still worth protecting. Hey why not, fake it till you make it, right? And the press will keep trying to make people reverent toward the Court again.

    But honestly that ended when they rejected the election cases on sketchy grounds or no grounds at all. Now at least half the country figures they’re clowns and this isn’t the USA really anymore, but there are stimulus checks still to get.

    The principles of politics are: Deny, Delay, Destroy.

Archie Smaltz | June 15, 2021 at 11:27 am

In war you have to decide which hill you are prepared to die on. Some simply are not worth it and in retreating you live to fight another day. The Alamo was worth fighting for because it bought Texas time to organize and arm, and Sam Houston retreating stretched Santa Anna’s forces till they were manageable, then bingo San Jacinto. Washington retreated all the way to Yorktown and ultimate victory.

I believe the court is trying to save our democracy and if a couple of Harvard classes have to be sacrificed in the process so be it. There are bigger fish to fry.

Looks like the Roberts court is asking the Biden administration which way it wants SCOTUS to rule.
The court is totally intimidator by the Democrats and does not want to rock the boat. Now that the Dems are in charge, every ruling has to be approved by Pelosi / Schumer.