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The Fisher argument in Plain English

This morning the Court heard oral arguments in what is likely to be one of the highest-profile cases of this Term:  Fisher v. University of Texas at Austin, the challenge to the university’s use of race in its undergraduate admissions process.  Affirmative action is hardly a new topic at the Court:  just nine years ago, in a case called Grutter v. Bollinger, it held that the University of Michigan Law School could consider race as one factor in its admissions process as part of its efforts to create a diverse student body.

The petitioner in today’s case, Abigail Fisher, had asked the Court to rule that the university’s policy goes further than the Grutter decision allows, because – thanks to a program that automatically admits any Texas high school student who graduates in the top ten percent of her class – the university already had a diverse student body, without having to consider race.  But if the university’s policy passes muster under Grutter, Fisher suggested in her briefs, the Court should consider overruling that decision altogether.

Although the Court’s decision in Grutter is less than a decade old, much has changed on the Court since then.  Most notably, Justice Sandra Day O’Connor, who wrote the majority opinion in Grutter upholding the law school’s use of race, retired in 2006; she was replaced by Justice Samuel Alito, who is considerably more conservative than she is.  Moreover, Justice Elena Kagan – who replaced Justice John Paul Stevens, a member of the Grutter majority – did not participate in the case, presumably because she was involved in the case in her old job as the Solicitor General of the United States.

With only three likely votes – Justices Ginsburg and Breyer, both of whom were in the Grutter majority, and Justice Sotomayor, who replaced Justice David Souter, another member of the Grutter majority – in the university’s favor, going into the oral argument supporters of affirmative action feared that not only the university’s policy, but also affirmative action more generally, might be in jeopardy.  After today’s oral argument, which went on for nearly twenty minutes longer than the one hour that the Court had allotted for it, it seems that the Court’s decision in Grutter and the idea of affirmative action in college admissions are likely to survive at least in theory, but going forward the Court could place much tougher restrictions on when and how colleges and universities may consider race in their admissions programs.  As Justice Sonia Sotomayor put it in a question to Bert Rein, who argued on behalf of Abigail Fisher this morning:  “You don’t want to overrule Grutter, you just want to gut it.”

To the extent that you can predict how the Court might rule based on the questions and topics at oral argument (and we all saw last summer, in the health-care cases, how risky a proposition this can be), the university’s supporters can feel quite confident that they have the votes of Justices Ginsburg, Breyer, and Sotomayor, all of whom were quite aggressive in questioning Bert Rein during his half-hour at the lectern.  The three Justices pressed Rein to explain, in essence, how the university’s consideration of race in its admissions process was any different from the process that the Court had upheld in Grutter.  The problem, Rein responded, was that the university has said that it needs to consider race in its admissions process until its student body has a “critical mass” of previously underrepresented minority students, but it hasn’t explained when or how it will reach such a “critical mass.”

But even if the university’s supporters can count on the three more liberal Justices to vote to uphold the university’s policy, they would need at least one more vote in their favor (which would result in a four-to-four tie) to uphold the lower court’s decision in this case.  And they heard very little during Rein’s argument to suggest that they might have a fourth vote, as almost all of the questions from the Court’s five conservative Justices were friendly ones for Rein.

The questions from the conservative Justices for Greg Garre, who argued on behalf of the university, were far less friendly, once again suggesting that the university could have trouble finding a fourth – much less a fifth – vote.  During Garre’s twenty-plus minutes at the lectern, the Court focused almost entirely on the question of a “critical mass” of underrepresented minorities:  when will the university have reached a “critical mass,” so that it no longer needs to consider race, and how much should courts trust universities to make the determination that a critical mass does not yet exist?  To a certain extent, Garre was between a rock and a hard place on the first point:  if he tried to define “critical mass” in terms of a specific percentage of minority students, he would be accused of endorsing a quota system, which the Court has rejected in its earlier cases.  Instead, he told the Court that the university would have a “critical mass” when it had created an environment in which underrepresented minorities do not feel isolated.  But this response led to more tough questions from the Chief Justice, who left little doubt that he was not inclined to vote in the university’s favor:  how, he asked, is the Court supposed to decide whether the university has created that kind of environment?  More than a little sarcastically, he queried, the university is “going to tell me?”

Garre also found himself in hot water with several of the conservative Justices as he tried to explain why the university needed to consider race at all in its admissions process, given that the university’s Top Ten Percent Plan – which automatically admits any Texas high school student who graduates in the top ten percent of her class – had already created a diverse undergraduate student body without having to resort to race.  Garre told the Court that the university’s consideration of race as one factor when deciding whether to admit undergraduates to fill the slots that are not filled using the Top Ten Percent Plan created a different kind of diversity, by ensuring a variety of viewpoints and experiences among students of a particular race.  Justice Alito found this rationale difficult to swallow, however, telling Garre that he “thought the whole purpose of affirmative action” was to help minority students from disadvantaged backgrounds; now, Justice Alito continued, you are saying that the university needs to admit wealthy minority students too?  And perhaps even more significantly for the university, Justice Kennedy – whose vote it almost certainly needs to win – asked Garre, somewhat incredulously, so “what counts is race above all?”

Solicitor General Don Verrilli argued for ten minutes on behalf of the United States, which appeared as an amicus curiae, or “friend of the court,” in support of the university.  With Justice Kennedy likely serving as the crucial vote in the case, both the other Justices’ questions and Verrilli’s answers seemed to be focused on trying to sway him.  For example, Justice Alito asked Verrilli about a scenario in which two identically well-qualified candidates were competing for the last slot in the freshman class, with the only difference between the two being that one was a member of an underrepresented minority group and the other was not.  Would the minority student get the slot, Alito asked?  Verrilli deftly emphasized that although race can make a difference under the university’s admissions scheme, it is not a mechanical factor; there is no quota for minority students, and the university instead considers race as one factor in an individualized, holistic review process.  Justice Breyer (again, likely for Justice Kennedy’s benefit) tried to pound this point home by listing all of the factors – more than a dozen in all – that the university considers in its review of applications.  If two applicants were completely identical with regard to all of these factors except for their race, then would race matter?  Verrilli’s answer:  Not necessarily.

Like Garre, Verrilli declined to define “critical mass” in terms of a specific number, but – having heard the Justices’ skepticism about allowing a university to decide for itself whether it had reached a “critical mass” and no longer needed to consider race – he acknowledged that courts should be allowed to make their own “independent judgments” about whether the university’s “critical mass” determination was a valid one.  And he was willing to concede that as the number of minority students at a university increases, it will be harder for the university to show that it still needs to consider race.  These kinds of concessions could foreshadow the Court’s ultimate decision in the case:  even if the core of Grutter survives, so that universities can still consider race as one factor in their admissions programs, the Court is likely to put some real teeth into the limits on when and how it can do so.

One other note:  although most of the argument focused on the university’s use of race in its admissions policy, the very first question of the case – from Justice Ginsburg – went to a different issue:  whether Fisher even had the right to bring this lawsuit because, according to the university, she wouldn’t have been admitted to the university’s freshman class under any circumstances, regardless of her race.  Her academic credentials, the university contended, just weren’t strong enough.  If she would have been rejected anyway, the argument goes, she wasn’t injured by the university’s use of race in its admissions program, and she can’t bring the lawsuit.  Rein countered that Fisher had indeed been injured, because she had been deprived of her constitutional right to have her application for admission treated the same way as everyone else’s.  Fisher’s right to bring the lawsuit is a technical legal issue known as standing, but it could be far from a technicality in this case:  if the Court were to deadlock four to four, a decision that Fisher had no right to even bring the suit could scuttle this case and allow the Court to take up the question of affirmative action again in another case – from which Justice Kagan might not be recused.

The eight Justices will vote on the case this Friday, during their private Conference.  Depending on the outcome, we could learn the results of their vote as soon as the next few weeks (if the Court were to deadlock), but it could – and is more likely to – take several months for us to find out their decision. Whenever it happens, we’ll be back to cover it in Plain English.

Recommended Citation: Amy Howe, The Fisher argument in Plain English, SCOTUSblog (Oct. 10, 2012, 4:43 PM),