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Halftime report at Fisher oral argument

The attorney representing the student challenging the use of race in admissions at the University of Texas just sat down.  Nothing terribly surprising.  The liberals dominated the questioning and were unsurprisingly skeptical.  Justice Breyer directly asked whether petitioner was asking the Court to overrule Grutter.  After some prevarication, he seemed to say no (and certainly didn’t say “yes” clearly).  Perhaps significantly, none of the conservative Justices interrupted to urge him to give a different answer, even though Justice Scalia did just that with respect to other questions and answers during the argument.

The argument began with Justices Ginsburg and Sotomayor suggesting the plaintiff lacked standing or the case had become moot because the student had graduated from another school and allegedly wouldn’t have been admitted even if race were not taken into account.  Petitioner’s counsel argued that the denial of an equal opportunity at a chance of admission was injury in itself, and the student should be allowed to prove that she would have been admitted or suffered other damages.  Justice Scalia chimed in to remark that the Court had not required proof that a contractor would have gotten a contract under a racially discriminatory contracting scheme, suggesting the same principle provided standing here.

Justice Ginsburg pressed counsel to explain his position if UT had never implemented the 10% plan.  Would it be entitled to use race to achieve critical mass in that circumstances?  Counsel said no, because the University has not demonstrated that even without the 10% plan it could not achieve critical mass without the use of race.  This led to a discussion of the data. Later in the argument, counsel asserted that even without the 10% plan, there would be 15% minority admissions, although the Chief Justice said he thought this figure was incorrect.

Justice Breyer suggested that because two lower courts have found that the use of race was necessary, the Supreme Court should defer to that finding.  Justice Scalia objected that the conclusion that race is necessary is not the kind of factual finding to which the Court would normally defer.

Several of the Justices attempted to get counsel for petitioner to identify what level of diversity was necessary to reach critical mass, given that he insists that the current plan is unconstitutional because it is not necessary to achieve that goal.  He insisted that it was not the petitioner’s burden, but the school’s and suggested that the school’s failure to set a goal in itself rendered the plan unconstitutional because it was impossible to know whether the use of race was necessary to achieve the unnamed goal or was narrowly tailored to it.  Justice Alito seemed sympathetic, announcing that he had no idea what Texas thought critical mass required.

There was a discussion of whether the state demographics were relevant to figuring out whether the University had accomplished critical mass.  Justice Scalia urged counsel for petitioner to argue that it isn’t — in a state with 1% minorities, he posited, a 1% minority population in the school would not amount to critical mass.

The conservatives were relatively quiet.  Justice Kennedy asked only a couple of questions, which were mostly uninformative of his views.  At one point he did, however, question petitioner’s argument that the use of race was unconstitutional because it only increased minority enrollment a small amount.  The Justice said this seemed to put the school in a bind — if measures increased diversity only a little, they are unconstitutional because they are unnecessary; if they increase diversity a lot, that shows the school has used race more than is necessary to achieve its interest in obtaining critical mass.  However, this small diversion shouldn’t be read to indicate much about Justice Kennedy’s overall view on the case.

As counsel tried to sit down, the Justices (mostly the liberal Justices) continued to pepper him with questions, eventually using up all his rebuttal time.  But the Chief Justice assured him he would add some time to allow rebuttal.

In sum, the argument was not terribly revealing of how the Court will rule.  The liberals were plainly supportive of the Texas plan and concerned about the possibility of overruling Grutter.  The conservatives were largely silent.  That will almost certainly change as counsel for the University and Solicitor General Verrilli stand up to defend that plan.


Recommended Citation: Kevin Russell, Halftime report at Fisher oral argument, SCOTUSblog (Oct. 10, 2012, 11:46 AM),