Analysis  (updated 2:15 pm; final update 3:15 pm)

Affirmative action is alive but ailing, the idea of “critical mass” to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive.  Those were the dominant impressions at the close of a one-hour, nineteen-minute argument in the Supreme Court Wednesday.  There is almost no doubt that the University of Texas’s affirmative action plan for admitting its freshman classes is in trouble with four Justices, but has at least qualified support from three others.  The one most in doubt among the eight taking part: Justice Anthony M. Kennedy.  He wanted to be convinced that the program does not use race at all costs, and it appeared that he was not.

At the center of the discussion was the Court’s last major ruling on affirmative action in college admissions – Grutter v. Bollinger, in 2003.  There was almost no one at the hearing thinking that Grutter would be flatly overruled, but Justice Sonia Sotomayor wondered what was on almost everybody’s mind: would it be “gutted”?  At a minimum, it seemed, it would have to be rewritten, and its central point — that a university can make some limited use of race until it achieves a “critical mass” in a diverse student body — may well be cast aside.   Chief Justice John G. Roberts, Jr., led a determined assault on the concept, finding it far too indefinite, and the idea had no fervent champions.

As the arguments turned out, the Court seemed unwilling to accept as conclusive the academic judgment that university officials make when they fashion admission plans that take some account, however limited, of the race of the applicants.  The Grutter decision was famous for its deference to universities’ calculation of the educational benefits of racial diversity, but that now appears to be a dated and perhaps even discredited approach.  Judges, it appeared, will assume a more dominant role in weighing the constitutionality of any use of race.

Across the country, foes of affirmative action — especially as it is practiced in public colleges and universities — had pinned their hopes on the challenge of the young white woman, Abigail Noel Fisher, who did not get into the flagship Texas university and insisted that it was because of her race.  But Fisher’s lawyer at the lectern, Washington attorney Bert R. Rein, was notably cautious in his verbal challenge to the Grutter precedent, and said explicitly that it was not his aim to have it overruled in toto.   He was almost finished when Sotomayor told him that, while he did not want it overruled, “you just want to gut it.”  He said he did not want that, but his argument was a plea to sharply pare it down.

There was enough talk about whether Ms. Fisher should have been allowed to file her lawsuit to leave the impression that the Justices may want to hold that issue in reserve, in case they cannot reach a majority on a definitive outcome in the case.  Should the Court be on the verge of a four-to-four split, as seemed on Wednesday to be an even more realistic result, it may well choose instead to find that Ms. Fisher lacked “standing” to sue, and end the case, looking to some future case to take up again the fate of Grutter and affirmative action.

Justice Antonin Scalia was the one most determined to keep Ms. Fisher’s case intact, saying that the Court had never required an affirmative action challenger to show that it would have succeeded in getting into a program or getting a contract in order to be allowed to sue to complain about unconstitutionality.   In any event, attorney Rein argued that Ms. Fisher had suffered a distinct injury — a “constitutional injury” in not being treated equally — and that should be enough to give her “standing.”

For all of the hype that preceded this argument, with fear and loathing among supporters of affirmative action, the entire seventy-nine minutes of exchanges were subdued, sometimes highly technical, and had more of the flavor of a seminar than a grand constitutional confrontation.  U.S. Solicitor General Donald B. Verrilli, Jr., in his brief stint at the lectern, essayed some soaring rhetoric about the virtues of a multicultural society, but it seemed a bit too calculated.   There was no bombast, even from Justice Scalia, and the only sign of testy impatience came from the Chief Justice as he bore down on the university’s attorney, Gregory G. Garre, to give some substance to the “critical mass” idea that would tell a court when the university had made enough use of race, and could then stop.

Garre and Verrilli both refused to be pinned down on what “critical mass” really means in an academic setting, and fell back on arguments that amounted to a plea that university officials know it when they see it, and can be trusted not to overdo it.

What was almost immediately evident in the argument was that the outcome almost certainly will lie in Justice Kennedy’s choice of how to vote.  The Chief Justice, Scalia, and Justice Samuel A. Alito, Jr., were decidedly hostile to the Texas program.  Justice Clarence Thomas, who said nothing, as usual, was a dissenter in Grutter, and thus probably can be counted on to disapprove of the Texas approach.  Justices Stephen G. Breyer and Ruth Bader Ginsburg, both in the majority in Grutter, seemed unimpressed with the challenge to it, although Ginsburg seemed somewhat less enthusiastic about Texas than Breyer although she said its plan would fit into Grutter.  Breyer was somewhat dogged in pressing attorney Rein on whether he wanted Grutter overruled.  “Why overrule a case into which so much thought and effort went and so many people across the country have depended on?” Breyer asked.  Justice Sotomayor, early and often, left no doubt that she would have joined Grutter had she been on the Court then.

With Justice Elena Kagan on the sidelines (because of a prior involvement with this case when she was in the Justice Department), those leanings would add up to four to three against the Texas plan.  Justice Kennedy could put the case away if he joined the defenders of Grutter, because a four-to-four split would mean that the Texas plan had been upheld — in a summary order without an opinion affirming the Fifth Circuit Court’s embrace of the plan.  He could scuttle, or at least undermine, the Texas plan by voting to make a majority with the more conservative members of the Court, who seemed ready (or were assumed to be) to reverse the Fifth Circuit.

Kennedy was somewhat slow to get involved in the argument.  After Justice Sotomayor had spent some time trying to find out what Fisher’s lawyer would say was a sufficient number of minorities at the university to make up a “critical mass,” and after Justice Alito said he did not understand how the university defined that phrase, Kennedy said he, too, wanted that question answered, although he digressed at that point.  Later, after the Justices more favorable to the Texas plan had sought to draw out Rein on when the university had gone far enough with a racial factor, he got involved again, seeking to know specifically what defects Rein found in that plan.  He seemed neutral at that point, and Rein had finished his opening before Kennedy could get many answers.

With university lawyer Garre taking his turn, Kennedy also held back.   After Garre had barely held his own during a barrage of questions from Justices Scalia and Alito about the application of the Texas plan down to the classroom diversity level and from the Chief Justice and Alito about what “critical mass” might mean, Kennedy bristled.  Garre had just told Alito that the university went “out of our way to recruit minorities from disadvantaged backgrounds,” Kennedy retorted: “So what you’re saying is that what counts is race above all.”  It did not seem to follow Garre’s point at all, but it probably revealed Kennedy’s basic sensitivity to race when it becomes what he considers a dominant factor in making public policy.

No matter how Garre tried to deflect Kennedy’s suggestion, the Justice repeated that Garre was just talking about race, period.

Chief Justice Roberts took another turn at pressing Garre about what “critical mass” means, and added questions about what would be the “end point” of Texas’s use of race.  Justice Sotomayor was prompted by that probing to ask at what point the courts should stop deferring to the educational judgment of universities on when using race was still necessary.  Since quotas would be unlawful, she said, what standard should be used to decide that an end-point had been reached?  Garre fell back on Grutter‘s discussion on that point.

Kennedy’s only other notable participation came during the argument by Solicitor General Verrilli, when the Justice wanted to know when, if ever, it was permissible for race to be a “tie-breaker” in choosing entering collegians.  In Verrilli’s closing peroration about the value of diversity in society, he quoted from a Kennedy opinion in an earlier race-in-education case.  Kennedy, the government lawyer said, had extolled the reality that “our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to a more perfect union.”  That, the Solicitor General said in closing, “is what the University of Texas is trying to do with its admissions policies, and it should be upheld.”

Verrilli’s most difficult moments in his brief stint came when he was grilled by the Chief Justice about the meaning of “critical mass.”    The Solicitor General said it was “not a number,” and that it “would be very ill-advised to suggest that it is numerical.”  He, in fact, mildly criticized the concept, saying that it “has taken on a life of its own in a way that’s not helpful because it doesn’t focus the inquiry where it should be” — that is, on diversity in culture and in human experience.

 

Posted in Fisher v. University of Texas at Austin, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument recap: Will Grutter be reshaped? (FINAL UPDATE), SCOTUSblog (Oct. 10, 2012, 12:55 PM), http://www.scotusblog.com/2012/10/argument-recap-will-grutter-be-reshaped/