Immediate post-argument recap
on Oct 10, 2012 at 12:45 pm
Lyle will have a full argument analysis soon, but here are some immediate updates to go along with Kevin’s halftime report.
Greg Garre, representing the university, repeatedly reminded the Justices that Bert Rein and Fisher were not asking the Court to overrule Grutter. He spent most of his argument fielding questions from the Chief Justice and Justices Alito and Scalia about when the university would reach a critical mass of minority students, such that it would no longer need to consider race in admissions. Those Justices appeared frustrated with Garre’s response — that the university didn’t have a specific number in mind, and that it would exist when there was an environment in which minority students did not feel isolated. That in turn led to frustration by, among others, the Chief Justice, who asked how the Court was supposed to decide whether such an environment existed, and whether it was supposed to defer to the university’s determination on that point. Justice Kennedy asked very few questions, and those that he did ask were skeptical: in particular, he questioned Garre’s assertion that the university need to be able to consider race to fill the slots that aren’t filled by the Top Ten Percent plan so that it had different viewpoints and backgrounds among minority groups, asking whether race “counts . . . above all?”
Solicitor General Don Verrilli, appearing as an amicus in support of the university for ten minutes, also reminded the Court that Rein had not asked it to overrule Grutter. Verrilli was quite effective during his ten minutes (which could be best thought of as efforts by Verrilli, the liberal Justices, and the conservative Justices to secure Justice Kennedy’s vote), emphasizing that the consideration of race in the admissions process is highly individualized and nuanced. When asked about the question of critical mass, he contended that the Court should make its own independent judgment about whether a university has substantiated its conclusion that it has not yet reached critical mass and needs to continue to consider race, but conceded that as the number of minorities increases, the burden on the university to substantiate that conclusion will be tougher.
With Justice Kagan recused, it is very hard to count to five votes to affirm the Fifth Circuit’s decision in favor of the university in an opinion on the merits. Indeed, whether there are four votes in the university’s favor is in doubt, and the efforts by the liberal Justices to emphasize the standing issue didn’t gain much traction with the rest of the Court.