Bench Memos

Casting for Affirmative Action Votes in Fisher v. University of Texas (Fisher II)

This morning’s oral arguments in Fisher v. University of Texas (known as Fisher II, since this is the case’s second trip to the high court), will determine how sincere the Supreme Court was when it held in Fisher I by a 7-1 vote (Justice Kagan was recused) that the university’s race-conscious affirmative action program had to survive strict scrutiny, the most exacting constitutional standard. Today the justices raised several issues that were never clearly resolved during the argument, with the result that Fisher II looks like it will turn out to be a nail-biter.

In 1996, the Fifth Circuit struck down racial preferences in undergraduate admissions at the University of Texas at Austin (affectionately known as “UT”) in a case called Hopwood v. Texas. In response, UT adopted a race-neutral “personal achievement index” (or PAI) score for applicants that was designed to allow for students with special disadvantages in their past. The Texas legislature also adopted a race-blind law called the Top Ten Percent Law, which granted automatic admission at any Texas public college to any student in the top ten percent of their public high school class. UT admissions proceeded on this race-neutral basis until the Supreme Court’s decision in Grutter v. Bollinger (2003), which held that race could be factored into admission decisions as part of the university’s pursuit of diversity and other goals.

On the same day that Grutter was decided, UT declared that the PAI program would start to consider race. Abigail Fisher, the plaintiff in Fisher I and Fisher II, then challenged the new program under the Fourteenth Amendment, but lost at the Fifth Circuit. In Fisher I, the Supreme Court concluded that the Fifth Circuit had failed to apply strict scrutiny, which requires that the government action be narrowly tailored to achieve a compelling governmental interest. On remand, the Fifth Circuit again upheld UT’s program, but by reaching outside the record and relying on explanations asserted by UT only late in the litigation. Thus, the case has now returned to the Court to see whether Fisher I meant what it said.

Right from the beginning, Justices Ginsburg and Sotomayor tried to get Petitioner’s counsel, Bert Rein, to concede this case was indistinguishable from Grutter. Rein didn’t bite. Justice Ginsburg then asked Rein whether the Top Ten Percent program was race-conscious, but he again refused the bait, prompting Justice Kennedy to provide the real purpose: “to define a neutral framework within which to satisfy the States and the universities’ objectives.”

That led Kennedy to turn to a different question: What sort of objective or interest would be sufficiently concrete as a compelling governmental interest? Rein appealed to Grutter’s phrase “critical mass,” but then pointed out that under strict scrutiny, the burden is on the university to explain the interest. Justice Scalia chimed in to question whether there were any studies showing when “critical mass” is satisfied. Justice Sotomayor referred to a 1996 study but quickly moved on. Breyer, whose interest was  now piqued, asked why the court couldn’t simply adopt the university’s conclusion that the critical mass was deficient as a diversity-related judgment that would satisfy Fisher I? Rein pointed to the holding of Fisher I: Strict scrutiny puts the burden of production on the university to explain itself and to provide evidence that program was necessary.

This gave Justice Alito the opportunity to ask whether UT had provided any evidence that the Top Ten Percent law was partly responsible for some of the underrepresentation reported in the study, but it appeared that the study’s analysis was not particularly granular. Justice Kennedy, clearly annoyed by the lack of evidence in the record supporting UT, then pushed Rein to explain why the case shouldn’t be remanded back to the district court for additional factual development. Rein reminded Kennedy that UT had to justify the policy at the time it was made, not just rationalize it post hoc, because that had clearly been the law since at least 1976.

Justice Roberts was very interested in the size of the increase in minority student admissions as a result of the policy change. This led to a factual dispute, with Rein relying on statistics calculated by the dissenting justice below and Justice Sotomayor citing seemingly much larger increases. Rein effectively defused this potential empirical disaster, though, by pointing out the problems with using Justice Sotomayor’s figures.

Trying a different tack, Justices Ginsburg and Sotomayor then asked whether Grutter could survive at all if the court applied strict scrutiny. Rein identified several race-neutral tweaks that UT could make to its program, such as de-emphasizing some of the more culturally-intertwined evaluation criteria and amplifying or rescoring other criteria. This didn’t satisfy Justice Ginsburg, though, who pressed Rein to identify when race could be used as a factor. His response was worth quoting in its entirety:

MR. REIN: Well, I mean, the first question is, you know, why are you using it? The why.  Therefore, it can be a factor. You have to clarify the objective, you have to show the necessity, and you have to show that, if you, as — as they do, live with and accept, over time, a very small increment in a very small segment of the class, that you can’t get it done any other way.

JUSTICE GINSBURG: I –

MR. REIN: Because race is not the baseline. It’s an odious classification. That’s where we differ.

UT’s argument was less dramatic as its attorney, Greg Garre, correctly discerned the justices’ concern about the state of the evidentiary record. Justices Scalia, Kennedy, and Alito peppered Garre with questions about the record, but were seemingly unsatisfied with his answers.

Most of Garre’s argument ran along these lines, except for one important series of questions by Chief Justice Roberts. Roberts asked Garre to explain whether the race-conscious program would need to continue indefinitely, pointing out that 2015 is already halfway to the 25-year mark that Justice O’Connor identified in Grutter as a potential endpoint for affirmative action. Garre said no: UT will stop considering race whenever it can achieve sufficient numbers for diversity without taking race into account.  

Solicitor General Verrilli’s argument was largely uneventful, which gave Justice Kennedy the opportunity to express his concern that UT assembled its factual evidence in support of the program after suit had been brought, not before it made the decision to consider race in the first place. Chief Justice Roberts joined in this criticism, noting that consideration of race is a “very serious matter” and implying that UT ought to have treated the decision with more care.

On rebuttal, Justice Sotomayor clashed with Rein on the consequences of a decision against UT, with Justice Sotomayor trying unsuccessfully to get Rein to concede that overturning the race-conscious admissions program would result in an all-white UT.

The ultimate outcome remains quite unclear, muddled by the justices’ obvious dissatisfaction about the state of the record. A remand of some sort seems possible, though it’s impossible to say how much additional factfinding the justices would want before final judgment. On the other hand, the probabilities appear to favor reversal, particularly with Justice Kagan recused from the case. Only Justices Ginsburg, Breyer, and Sotomayor obviously leaned toward affirmance. The Chief and Justice Scalia obviously leaned the other way. And Justice Thomas’s views, as set out in his eloquent dissent in Grutter, would lead to a vote in favor of reversal. Justices Kennedy and Alito are somewhat harder to predict because of their questions about the adequacy of the record, but their framing of substantive questions suggests that they are leaning (at least slightly) toward the petitioner. 

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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