So this morning SCOTUS handed down the Fisher reverse discrimination case opinion in which their Lordships chickened out for a change, and sent the case back to the lower courts to start over again. Their Lordships could have saved themselves a lot of trouble had they, instead of writing all those opinions, used the musical notation and simply said da capo. But what do we know? Still, no Koontz decision.
If you want our views on the wretched subject of reverse discrimination, expressed by your faithful servant 34 years ago, but still valid, see 30 Urban Lawyer at 307-308, n. 1. and accompanying text. And if you want to read the absolutely, positively best commentary on the wretched Bakke case that started this interminable intellectual, doctrinal and moral mess, we highly recommend William Kai-Sheng Wang, The Devil Visits Justice Powell, Los Angeles Lawyer, July-August 1979, at p.34
But back to Koontz which is what this post is supposed to be about. Given that the factual setting in Koontz is straightforward and it either triggers or fails to trigger the Nollan-Dolan rule, why the long delay? This does not bode well for property rights or for clarity in the law. But presumably, there is only a few days to go, so sit tight everybody.
Unlike some of our colleagues, we refuse to speculate on who is writing the opinion, or otherwise doing what to whom. But we are mindful of what Jesus said: “Blessed are the pessimists for they shall not be disappointed.” Nothing good is likely to come out of this.