The Chief Justice at oral argument in Fisher
on Oct 11, 2012 at 9:50 am
After Chief Justice John Roberts broke ranks with his conservative colleagues to uphold the Affordable Care Act in National Federation of Independent Business v. Sebelius, Court watchers pondered whether the opinion in that case might be the first of many liberal decisions from the Chief Justice. Yesterday’s argument in Fisher v. University of Texas may put the speculation to rest for a long time, if not for good: the Chief Justice at least strongly signaled his hostility toward the University of Texas’s affirmative action program, and he was not shy about it.
As Bert Rein, representing petitioner Abigail Fisher, made his case against the University’s consideration of race in its undergraduate admissions program, the Chief Justice stayed mostly quiet. He asked only one question, which was to clarify a statistic. He also perked up considerably when Rein argued that the Texas program fails strict scrutiny because it is not narrowly tailored. Foreshadowing what was to become a core theme of today’s argument, Rein contended that the University of Texas had failed to articulate what a “crucial mass” of minorities on campus would look like, and he observed that “if you think about narrow tailoring, you can’t tailor to the unknown.” Chief Justice Roberts visibly lifted his head at that before jotting some notes to himself – he seemed pleased to hear the point made in sound-bite form.
In contrast with his passive response to Rein’s presentation, Roberts pressed Gregory Garre, counsel for the University (and his former colleague at the law firm of Hogan & Hartson, now HoganLovells, in the 1990s). He began by asking whether somebody who is only one-quarter Hispanic, or even one-eighth Hispanic, could claim that ethnicity at the University. He continued to express concerns about the University’s methods for identifying minorities, staging a duet with Justice Scalia on the subject that suggested that the University was not being sufficiently objective in its data collection.
The Chief Justice also led the charge on the critical mass point, asking: “What is the critical mass of African Americans and Hispanics at the university that you are working toward?” When Garre responded that the University did not have a specific number in mind, Roberts pressed the point: “So how are we supposed to tell whether this plan is narrowly tailored to that goal?” The Chief Justice continued to beat that drum throughout Garre’s presentation – as well as that of Solicitor General Donald Verrilli – arguing on multiple occasions that under the Court’s precedent, judges are charged with evaluating a university’s progress toward critical mass and cannot engage in meaningful judicial oversight unless that goal is well defined.
The Chief Justice was likewise hostile to other aspects of the university’s argument. He suggested that the university’s holistic admissions process might be little more than a smokescreen for racial preferences, noting to both Garre and Verrilli that “race is the only one of your holistic factors that appears on the cover of every application.” And he was dismissive of the university’s objection to Ms. Fisher’s standing, stating that the University had raised the point only in a single footnote of its brief.
Of course, the Term ahead will provide many more opportunities for the Chief Justice to signal his sympathies. But yesterday’s argument undermines the theory that Chief Justice Roberts switched teams for good. In all likelihood, he is a safe vote for Ms. Fisher.