October 10, 2012
Fisher v. University of Texas: Oral Argument
Bert Rein, arguing on behalf of petitioner Abigal Fisher opened his argument with a classic issue statement:
The central issue here is whether the University of Texas at Austin can carry its burden approving that its use of race as an admissions-plus factor in the consequent denial of equal treatment, which is the central mandate of the Equal Protection Clause, to Abigail Fisher met the two tests of strict scrutiny which are applicable.
His attempt to expand - - - by stating "first" - - - was quickly interrupted by Justice Ginsburg who raised the issue of standing, an inquiry that Justice Sotomayor joined. Justice Scalia attempted to provide an answer, referring to Fisher's as being "that she was denied a fair chance in the admission lottery."
Justice Breyer moved to the question of whether Fisher was asking the Court to "overrule Grutter," a question that Rein answered by stating that Fisher "could satisfy Grutter" if the case was "properly read."
During the rebuttal argument, Sotomayor asked "So you don't want to overrule Grutter, you just want to gut it."
MR. REIN: Excuse me?
JUSTICE SOTOMAYOR: You just want to gut it. You don't want to overrule it, but you just want to gut it.
MR. REIN: Well -
JUSTICE SOTOMAYOR: Now you want to tell universities that once you reach a certain number, then you can't use race anymore.
MR. REIN: Justice Sotomayor, I don't want to gut it. And the only way one could reach that conclusion is to assume that Grutter is an unlimited mandate without end point to just use race to your own satisfaction and to be deferred to in your use of race. That is unacceptable. That is the invasion of Abigail Fisher's rights to equal protection under the law. Thank you.
During the main argument, however, the Grutter discussion led to an extended discussion of the effect of Texas' "ten percent" program, to which the Grutter type admissions policy was only an augment.
Arguing for University of Texas, Gregory Garre also opened with a classic issue articulation - and was also quickly interrupted:
For two overriding reasons, the admissions plan before you is constitutional under this Court's precedents. First, it is indistinguishable in terms of how it operates in taking race into account as only one modest factor among many for the individualized considerations of applicants in their totality from plans that this Court has upheld in Grutter and plans that this Court approved in Bakke and the Harvard plan.
JUSTICE SOTOMAYOR: I -- I put that in the narrow tailoring category, that it is narrowly tailored the way Grutter did, said.
Chief Justice Roberts soon focused on the question of numbers and identity categories:
MR. GARRE: Your Honor, there is a multiracial box. Students check boxes based on their own determination. This is true under the Common Application -
CHIEF JUSTICE ROBERTS: Well, I suppose a person who is one-quarter percent Hispanic, his own determination, would be I'm one-quarter percent Hispanic.
MR. GARRE: Then they would check that box, Your Honor, as is true -
CHIEF JUSTICE ROBERTS: They would check that box. What about one-eighth?
And arguing for the federal government, supporting the position of University of Texas, Solicitor General Verrilli referred numerous times to Kennedy's dissent in Grutter and concurring opinion in Parents Involved, ending by stating:
I think it is important, Your Honors, not just to government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved, that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union. That's what the University of Texas is trying to do with its admissions policy, and it should be upheld.
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One of my interests is in how constitutional law issues can be treated as on their own separate page sometimes and sometimes be treated as shaped by and shaping lives away from the courts and government. Fisher is a good case for illustrating this. It is important that the justices have lives rooted in the lives of a variety of citizens, and that they not be themselves provincial.
Does anyone seriously think that there is not an active and effective affirmative action program in place right now working for the benefit of white males? Does Justice Kennedy?
Posted by: Prof. J. W. Powell | Oct 12, 2012 6:31:48 AM