Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/166

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Cite as: 600 U. S. ____ (2023)

27

Sotomayor, J., dissenting

A

Answering the question whether Harvard’s and UNC’s policies survive strict scrutiny under settled law is straightforward, both because of the procedural posture of these cases and because of the narrow scope of the issues presented by petitioner Students for Fair Admissions, Inc. (SFFA).^[1]

These cases arrived at this Court after two lengthy trials. Harvard and UNC introduced dozens of fact witnesses, expert testimony, and documentary evidence in support of their admissions programs. Brief for Petitioner 20, 40. SFFA, by contrast, did not introduce a single fact witness and relied on the testimony of two experts. Ibid.

After making detailed findings of fact and conclusions of law, the District Courts entered judgment in favor of Harvard and UNC. See 397 F. Supp. 3d 126, 133–206 (Mass. 2019) (Harvard I); 567 F. Supp. 3d 580, 588–667 (MDNC 2021) (UNC). The First Circuit affirmed in the Harvard case, finding “no error” in the District Court’s thorough opinion. 980 F. 3d 157, 204 (2020) (Harvard II). SFFA then filed petitions for a writ of certiorari in both cases, which the Court granted. 595 U. S. ___ (2022).^[2]

The Court granted certiorari on three questions: (1) whether the Court should overrule Bakke, Grutter, and

strategic litigation choice, and in our adversarial system, it is not up to this Court to come up with “wrongs to right” on behalf of litigants. Id., at 244 (internal quotation marks omitted).

↑ SFFA is a 501(c)(3) nonprofit organization founded after this Court’s decision in Fisher I, 570 U. S. 297 (2013). App. to Pet. for Cert. in No. 20–1199, p. 10. Its original board of directors had three self-appointed members: Edward Blum, Abigail Fisher (the plaintiff in Fisher), and Richard Fisher. See ibid.
↑ Bypassing the Fourth Circuit’s opportunity to review the District Court’s opinion in the UNC case, SFFA sought certiorari before judgment, urging that, “[p]aired with Harvard,” the UNC case would “allow the Court to resolve the ongoing validity of race-based admissions under both Title VI and the Constitution.” Pet. for Cert. in No. 21–707, p. 27.

[2] SFFA is a 501(c)(3) nonprofit organization founded after this Court’s decision in Fisher I, 570 U. S. 297 (2013). App. to Pet. for Cert. in No. 20–1199, p. 10. Its original board of directors had three self-appointed members: Edward Blum, Abigail Fisher (the plaintiff in Fisher), and Richard Fisher. See ibid.

[3] Bypassing the Fourth Circuit’s opportunity to review the District Court’s opinion in the UNC case, SFFA sought certiorari before judgment, urging that, “[p]aired with Harvard,” the UNC case would “allow the Court to resolve the ongoing validity of race-based admissions under both Title VI and the Constitution.” Pet. for Cert. in No. 21–707, p. 27.

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