I thought I would take a moment to point out two strategic gambits by the liberal justices during the Fisher oral arguments last week. (Note: my organization, the Judicial Crisis Network, also filed an amicus curiae brief with the Asian American Legal Foundation in this case.)
1. Justice Breyer’s attempt to use sleight-of-hand to insulate the lower courts’ legal conclusions from review by characterizing them as factual findings.
Breyer invoked the “two-court” rule that the court often follows, i.e., that when two lower courts have made a determination about a disputed factual matter the Supreme Court will not second-guess that determination. The rule does not apply, however, to issues of fact that are intrinsically tied up with a constitutional determination, and the Court has repeatedly refused to apply it that way. In this case (as in the Prop 8 case), it is clear that what we have is simply a legal determination masquerading as a factual finding. Justice Scalia noted that the determination of whether the University of Texas had achieved a critical mass of “underrepresented minorities” was a judgment rather than a pure fact. The other justices seemed inclined to agree, as later debate continued during the arguments about what constitutes critical mass, whether it can be described as a numerical threshold, and whether it fluctuates by state or school.
Keep your eyes on this technique in other cases, as it could prove useful to judges attempting to smuggle their legal conclusions in via an established test, and may well be accepted by uncritical or sympathetic appellate judges.
Justice Sotomayor, in querying how to determine critical mass, betrayed a shocking assumption about her approach to racial preferences. She stated, “Pre-Grutter, when the state was indisputably still segregating, [the share of blacks in the University of Texas system] was 4 percent.” Recall that Grutter was decided in 2003. Was UT actually segregated in 2002? In fact, it was not — the university was actually giving such heavy weight to race considerations in favor of minorities that their program was found to be unconstitutional in 1996. Since then, the school has been on a quest to increase minority enrollment in every way legally possible, and they were so eager to do so that they instituted the racial-preferences program in question on the very day that Grutter was decided. Does this sound like a school that was until recently laboring under segregation? Hardly.
Perhaps, then, Justice Sotomayor simply was suggesting that the UT’s admissions policy pre-Grutter was effectively no better than segregation because it did not achieve a “critical mass” (whatever that is) of minority students (or at least of the right types of minority students). If so, she should review the Court’s caselaw clearly establishing that the Equal Protection Clause is not violated simply because a state’s neutral laws have a disproportionate effect on different racial groups, but only when racially discriminatory intent is a “motivating factor” for the law.
On a positive note, I don’t see this particular fallacy making much headway on the Court, but it does suggest that this “wise Latina” still has a soft spot in her heart for racial preferences that goes well beyond what the Constitution allows.