stating that a Marks holding “must necessarily produce results with which a majority of the Court from that case would agree.” (internal quotation marks omitted)
How later courts described this case
- stating that a Marks holding “must necessarily produce results with which a majority of the Court from that case would agree.” (internal quotation marks omitted)
- holding that “arising under” jurisdiction exists where one invokes a substantive right created by federal bankruptcy law
- “More fundamentally, the holding/dicta distinction demands that we consider binding only that which was necessary to resolve the question before the [Supreme] Court . . . . Any speculation regarding the circumstances under which race could be used was little more than an advisory opinion.”
- sustaining program using race in the admission of students to the University of Michigan School of Law
Written by the judges who cited it.
The opinion
BATCHELDER, Circuit Judge,
dissenting.
I concur in Judge Boggs’s careful and scholarly dissent. I write separately to say that I concur in all of that dissent, including the exposition of the procedural history of the case. In her separate concurrence, Judge Moore expresses her belief that by revealing that history, Judge Boggs — and I, by concurring — undermine the legitimacy of the court and do harm to ourselves, this court and the nation. I believe that exactly the opposite is true. Public confidence in this court or any other is premised on the certainty that the court follows the rules in every case, regardless of the question that a particular case presents. Unless we expose to public view our failures to follow the court’s established procedures, our claim to legitimacy is illegitimate.