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Diversity

Conservative group sues ABA over Legal Opportunity Scholarship Fund program

By Debra Cassens Weiss

April 17, 2025, 12:36 pm CDT

A group led by a conservative activist has filed a lawsuit alleging that an ABA scholarship program engages in “blatant discrimination” in violation of federal law.

The April 12 suit filed by the American Alliance for Equal Rights, a nonprofit organization, says the scholarships are contractual in nature, and their restrictions on eligibility violate Section 1981 of the Civil Rights Act, which bans discrimination in contracting.

The ABA is represented by Jenner & Block, one of the law firms targeted in a punitive executive order by President Donald Trump, Bloomberg Law reports. Jenner & Block has filed a suit challenging the order against it.

The suit by conservative activist Edward Blum’s group targets the ABA’s Legal Opportunity Scholarship Fund, which awards $15,000 scholarships to select incoming law students. Applicants must be members of underrepresented racial or ethnic minorities, such as Black/African Americans, Native Americans, Hispanic Americans and Asian/Pacific Islanders, according to the suit, filed in the U.S. District Court for the Northern District of Illinois.

“Even if the scholarship did not flatly exclude whites on its face,” the suit says, “the scholarship discriminates against whites in application and by design.”

The suit seeks a declaration that the scholarships violate Section 1981, an injunction barring the ABA from considering race or ethnicity in the program, an order to reopen the application process using neutral criteria, and nominal damages.

Another organization that Blum created, Students for Fair Admissions, won a U.S. Supreme Court ruling in June 2023 that struck down race-conscious admissions programs in higher education.

The American Alliance for Equal Rights is represented by Lawfair and Consovoy McCarthy.

The goal of the new suit, Blum said in a statement, “is not to eliminate ABA’s scholarships but to ensure they are based on legitimate criteria, such as financial need or merit, rather than race.”

The ABA does not comment on active litigation, according to Jim Walsh, the chief communications officer and associate executive director of the ABA.

Publications covering the suit include Law.com, Law360, Reuters and Bloomberg Law.

See also:

Activist who succeeded in ending affirmative action targets law firms’ diversity efforts

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The last year at the U.S. Supreme Court confirmed what has been clear since President-elect Donald Trump selected three justices between 2017 and 2020: It is a very conservative court. Those who are conservative celebrate this, and those who are liberal decry it. But no one disputes that when the court is ideologically divided, it is virtually always a 6-3 decision with a conservative result. This was certainly true in 2024, and it is likely to remain that way for many years to come.

What was most notable about 2024?

It is the John Roberts Court. Two years ago, when the Supreme Court overruled Roe v. Wade, Chief Justice Roberts concurred in the judgment but did not join Justice Samuel Alito’s majority opinion. Some speculated Roberts had lost his court; there were five other conservative justices, and they did not need Roberts vote to have a majority.

In 2024, it was clearly the Roberts Court. In October Term 2023, Roberts was in the majority more than any other justice, dissenting in only two cases. He wrote many of the most important decisions of the term, including Trump v. United States, two major cases concerning the administrative state, and a significant ruling about the Second Amendment.

The court sides with Donald Trump

Many thought that the court might play a key role after the November presidential election, but Donald Trump’s clear victory meant there was not post-election litigation. Earlier in the year, however, the court decided two cases involving Trump that were quite important. Trump prevailed in both.

Trump v. Anderson involved Section 3 of the 14th Amendment, which provides that a person who has taken an oath to uphold the Constitution and then participates in a rebellion or insurrection is disqualified from being a senator or representative in Congress, or an elector for president and vice president, or holding any office— civil or military—under the United States or under any state.

The Colorado Supreme Court ruled Trump was disqualified from running for president because of his involvement in the Jan. 6, 2021 insurrection at the U.S. Capitol. The U.S. Supreme Court unanimously reversed the Colorado Supreme Court and held that a state court cannot not enforce Section 3 of the 14th Amendment. It was a per curiam opinion—an opinion of the court. Justice Amy Coney Barrett concurred in part and concurred in the judgment in part. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson concurred in the judgment, but their tone was more like a dissent. The court concluded that “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the states.” The effect of the decision is to effectively nullify Section 3 of the 14th Amendment; it is hard to envision the suit under it that could succeed.

The other case was Trump v. United States. No case in the last year received more attention or was more divisive in the Supreme Court than this one. The issue was whether and to what extent Donald Trump had immunity from criminal prosecution for actions that, according to the indictment, were taken to undermine the outcome of the 2020 presidential election.

In a 6-3 decision, the court held that the president has broad immunity from criminal prosecution for official acts taken while in office. Roberts wrote for the court. Justices Clarence Thomas and Barrett wrote concurring opinions. And Justices Sotomayor and Jackson each wrote blistering dissenting opinions.

The majority and the dissents began from very different premises. Roberts’ majority opinion began with the premise of a need to protect the presidency from judicial scrutiny. The court expressed concern that allowing criminal prosecutions of actions taken while in office could chill necessary presidential conduct.

By contrast, the dissenting justices began with the premise that the framers of the Constitution above all rejected the idea of royal prerogatives. They stressed that the rule of law means that no one, not even a president or former president, is above the law.

Roberts’ majority opinion divided presidential acts into three categories. First, there are presidential acts carrying out official powers bestowed by the Constitution or federal statutes. For these, the president has absolute immunity from criminal prosecution. Second, there are actions that are at the “outer perimeter” of presidential powers. In this area, there is presumptive absolute immunity, but it can be overcome. Finally, there are acts of the president that do not fit into either of these categories. Such conduct is not protected by immunity.

Justice Sotomayor wrote a vehement dissent joined by Justices Kagan and Jackson. She argued that there is no authority for absolute presidential immunity in the text of the Constitution or its history. Justice Sotomayor saw great dangers in according a president absolute immunity for all official acts. She declared: “The President of the United States is the most powerful person in the country and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” She powerfully concluded, “With fear for our democracy, I dissent.” Justice Jackson wrote a similarly emphatic dissent.

The administrative state

When constitutional historians look back at this era of the Roberts Court, they will say that some of its most important changes concerned administrative law. In the prior two years, the court fashioned a new limit on administrative agencies: the major questions doctrine. It provides that an administrative agency cannot act on a major question of economic or political significance without clear guidance from Congress.

In the past year, several decisions further changed the administrative state. In Loper Bright Enterprises v. Raimondo, the court overruled Chevron deference—the principle that courts should defer to administrative agencies when they interpret ambiguous federal statutes so long as their interpretation is reasonable. In a 6-3 decision—with Roberts writing the majority opinion and Justice Kagan writing the dissent—the court said that the Administrative Procedure Act requires courts to exercise independent judgment in deciding whether an agency has acted within its statutory authority; they may not defer to an agency interpretation of the law when a statute is ambiguous.

In Securities and Exchange Commission v. Jarkesy, the court held that when an administrative agency imposes civil penalties for fraud, the defendant has a Seventh Amendment right to a jury trial. Again, it was a 6-3 decision, with Roberts again writing the majority opinion and Justice Sotomayor writing the dissent.

And in Corner Post Inc. v. Board of Governors of Federal Reserve System, the court ruled that the six-year statute of limitations for suits under the Administrative Procedure Act runs not from the time of the agency’s action, but from the time a person is injured by it. In other words, a person can challenge an agency action from decades ago so long as the federal court action is filed within six years of when the individual was injured. Once more, it was a 6-3 decision, here with Justice Barrett writing the majority opinion and Justice Jackson writing for the dissenters, lamenting a ruling that she said would have a “staggering” effect on administrative agencies.

All of these changes in the law involve a shift in power from federal agencies to federal courts. They also reflect a profound change in the court’s approach to the administrative state. Since at least the New Deal in the 1930s, the assumption has been that Congress needs to give broad delegation to federal agencies that use their expertise in rulemaking and adjudication, and that courts will defer to that expertise. The conservative majority accepts none of these premises.

Ethical issues

Again in 2024, the issues of ethics arose concerning justices. There were new revelations concerning benefits that Justice Thomas received that were not properly disclosed. And there were allegations that a flag was displayed at Justice Samuel Alito’s home in a manner that expressed the view that the 2020 election was stolen from Donald Trump and that another was flown at his vacation home that was seen as expressing support for Trump.

In November 2023, the court, for the first time, promulgated an ethics code for the justices. But it lacks any enforcement mechanism and left to each justice the decision as to whether to recuse in a particular case. This received significant criticism, and in July 2024, at the 9th U.S. Circuit Court of Appeals’ annual conference, Justice Kagan indicated she would favor an enforcement mechanism, such as a panel of retired court of appeals judges deciding recusal motions. In December 2024, the New York Times published a story describing the disagreement among the justices concerning the ethics code and its enforcement, including the sharp disagreement among the justices along ideological lines.

The future

Perhaps the most important event in 2024 for the Supreme Court’s future occurred Tuesday, Nov. 6, when Donald Trump won the presidency. Many speculate that Trump’s reelection, combined with a Republican Senate, will lead Justices Thomas and Alito to retire in the next two years. If so, and if they are replaced by much younger conservatives, that will secure a conservative majority on the court likely for decades to come. With Justices Neil Gorsuch, Brett Kavanaugh, and Barrett all in their 50s, that would mean five justices appointed by Donald Trump under age 60.

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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (November 2024).

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Law Schools

Don’t give money to law schools unless they teach originalism, conservative federal appeals judge says

By Debra Cassens Weiss

October 29, 2024, 12:17 pm CDT

“Anti-originalist” law professors dominate law schools, and they aren’t equipping students with the practical knowledge that they need to make originalist arguments, a conservative federal appeals judge said last week in a lecture hosted by the Heritage Foundation, a conservative think tank.

Judge Amul Thapar of the 6th U.S. Circuit Court of Appeals at Cincinnati said conservatives could spur change by withholding donations to the schools, report Bloomberg Law, Law360 and Reuters via the Originalism Blog. How Appealing links to the video.

Taxpayers can also play a role by demanding that publicly funded law schools stop “pursuing their own political agendas,” Thapar said, according to Reuters.

Bloomberg Law and Law360 highlighted this remark: “Make no mistake: Money talks. Only when the taxpayers and donors alike demand it will law schools start to change.”

Originalist judges interpret the Constitution based on its meaning as understood at the time it was written. Thapar, an appointee of former President Donald Trump, was on Trump’s U.S. Supreme Court short list.

Thapar said law professors at too many law schools tell their students that a court’s originalist analysis “is just a smokescreen for some nefarious political goal.”

The lack of training, Thapar said, means that lawyers are missing originalist arguments that could benefit their clients, according to Bloomberg Law and Law360.

“It’s amazing how many times my colleagues and I say, ‘If they only would have made argument X, their client might have had a chance,’” Thapar said.

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3. ABA changes description of Judicial Clerkship…

Bar Associations

ABA changes description of Judicial Clerkship Program after conservative group sees ‘quotas’

By Debra Cassens Weiss

October 9, 2024, 2:00 pm CDT

The ABA updated the description of its Judicial Clerkship Program after a conservative group alleged that the language indicated that the association used racial “quotas” in violation of Title VI of the Civil Rights Act of 1964.

Annaliese Fleming, the ABA senior associate executive director and general counsel, said in a statement the description was changed because it was inaccurate.

“In reviewing the program materials, some language was removed that did not accurately reflect the operation of the program,” Fleming said. “The Judicial Clerkship Program has not been changed. We remain committed to the ABA’s Goal III of enhancing diversity and eliminating bias in the legal profession, legal system and the association.”

The prior description said law schools participating in the Judicial Clerkship Program must “commit to send (and underwrite the costs for) four to six law students who are from underrepresented communities of color.” The old description also said judges participating in the program would be asked to make a commitment to hire at least two minority law clerks over the next five years.

The new wording says law schools “are encouraged to select a diverse group of students using criteria aligned with the ABA’s Goal III objectives.” It also says judges from across the country participate in the program but says nothing about judges striving to hire at least two minority law clerks.

Reuters and Bloomberg Law covered the new language.

The conservative Wisconsin Institute for Law & Liberty had targeted the ABA’s description of the Judicial Clerkship Program in a civil rights complaint filed with the U.S. Department of Justice in May.

The complaint, which was also sent to the Department of Education, targeted law schools participating in the program, as well.

The complaint alleged violation of Title VI, which bans discrimination on the basis of race, color or national origin by recipients of federal funds. The complaint says the ABA is subject to Title VI because it receives federal funds, serves a public purpose, and provides educational and social services.

The complaint asked for an investigation of the ABA and any university that participated in the Judicial Clerkship Program.

The ABA had told the institute in response to an April demand letter that it “imposes no restrictions on which students can attend the program,” and that “the selection of student participants is left solely to the discretion of participating schools,” according to the Title VI complaint. The ABA response also said judges were not asked to make hiring commitments.

“The programs at issue are lawful, and we intend to defend them vigorously against any challenges,” Fleming said in a statement when the institute filed the DOJ complaint.

Skylar Croy, associate counsel at the Wisconsin Institute for Law & Liberty, did not immediately respond to an ABA Journal email with questions about the change.

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Judiciary

Conservative faction pushes judge nominees who are ‘even more bold and more conservative’

By Debra Cassens Weiss

October 15, 2024, 10:02 am CDT

Former President Donald Trump has broken with leaders of the conservative Federalist Society, who failed to voice their support when he tried to overturn the 2020 election and when prosecutors charged him with crimes.

Instead, the Wall Street Journal reports, Trump “has gravitated to more-combative lawyers outside the conservative legal establishment who have said they want to hobble regulatory agencies and concentrate power in the White House.”

These lawyers are part of a rising conservative faction that includes America First Legal, a conservative legal group founded by nonlawyer and former Trump adviser Stephen Miller to combat “the left’s radical and lawless agenda.”

One Republican legal activist pushing for pro-Trump judicial nominees is Mike Davis, according to the Wall Street Journal. Future nominees must be “even more bold and more conservative and more fearless” than those appointed in Trump’s first term, Davis said.

Davis likes judges following the model of conservatives on the 5th U.S. Circuit Court of Appeals at New Orleans. The Wall Street Journal described the appeals court as “a hothouse of conservative jurisprudence under the influence of some of the brashest and most aggressive first-term Trump appointees.”

The up-and-coming conservative faction wants to see Trump appoint more judges like U.S. District Judge Aileen Cannon of the Southern District of Florida, who dismissed the classified documents case against Trump, according to the article. She was mentioned as one of the “up-and-comers to watch” by former White House counsel Donald McGahn during a September conference.

Hat tip to the Volokh Conspiracy.

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Judiciary

‘Known Christian conservative’ judge says his ouster over sexual assault reversal was ‘total political hit job’

By Debra Cassens Weiss

February 27, 2024, 10:44 am CST

A judge who declared that a sexual assault defendant had “plenty of punishment” before reversing the conviction has been removed from the bench.

Judge Robert K. Adrian, 66, of Adams County, Illinois, was ousted by the Illinois Courts Commission in a Feb. 23 opinion, report the Associated Press, the Chicago Tribune and the Muddy River News.

Adrian told the Muddy River News that he reversed the conviction of Drew Clinton because he was not guilty. The commission’s decision was “a total political hit job,” Adrian said.

Adrian told the Chicago Tribune that the commission’s decision was “totally a miscarriage of justice.” He said what he did was right, and he has always told the truth about it. Adrian said there is a “two-tiered justice system for conservative Republicans in Illinois,” and he was targeted because he’s “a known Christian conservative.”

In a January 2022 hearing, Adrian said Clinton had received “plenty of punishment” after spending 148 days in jail and reversed the youth’s conviction. Illinois sentencing law required Clinton to spend four years in prison. Adrian had initially convicted Clinton, who was 18 years old when he was charged, in a bench trial in October 2021.

Clinton’s sexual assault conviction was for placing his finger in the vagina of a 16-year-old victim at a graduation party when she was unable to give knowing consent. Adrian initially acquitted Clinton on two other counts alleging vaginal penetration with his penis.

The victim had testified that she got drunk, fell asleep and awoke with a pillow pushed in her face as Clinton sexually assaulted her.

During the January 2022 hearing, Adrian said he can’t sentence Clinton to time served, which would be a just sentence. But he can reconsider his verdict and find Clinton not guilty, he said. He also criticized parents for having parties for teenagers, allowing them to swim in their underwear, and allowing them to bring liquor to a party.

“The court is totally disgusted with that whole thing,” he said.

Before the hearing, Adrian asked the defense attorney in an ex parte conversation whether he had spoken to the state’s attorney about the possibility of a plea agreement, the commission’s decision said. The defense lawyer replied that the prosecutor was not willing to do that. Adrian also spoke with the state’s attorney alone about any plea deal.

Adrian told the Illinois Judicial Inquiry Board that he reversed the sentence because prosecutors had failed to prove that the victim was unable to prove consent. He said his “plenty of punishment” comment meant that the jail term would have been proper if Clinton had been charged with a different offense.

The Illinois Courts Commission said Adrian’s justification for the reversal was a “subterfuge.” Adrian’s conduct, his comments at the sentencing hearing, and his reversal order “are clear and convincing evidence that [Adrian] reversed his guilty finding to thwart and circumvent the law that required him to impose a mandatory prison term upon Clinton,” the commission said.

The commission found that Adrian gave “misleading and deceptive explanations regarding his true reasons for reversing himself,” demonstrating “an utter disregard for the integrity of the judiciary.”

The commission also said Adrian violated ethics rules when he ordered a prosecutor to leave his courtroom for liking a social media post that criticized Adrian’s reversal. The prosecutor has accepted Adrian’s apology and later appeared in front of Adrian.

Several lawyers who testified said Adrian was knowledgeable in the law and had a reputation for being fair and serving with integrity. There were no other complaints or discipline against Adrian during his 13 years on the bench.

The 16-year-old girl who accused Clinton told the Chicago Tribune after Adrian’s ouster that she was “very happy that the commission could see all the wrong and all the lies that he told the entire time. I’m so unbelievably happy right now. He can’t hurt anybody else. He can’t ruin anyone else’s life.”

See also:

“‘Plenty of punishment’ judge faces ethics hearing for reversing rape conviction after questioning sentence”