More High Comedy At The High Court—Sailer On The FISHER Oral Arguments
October 11, 2012, 03:42 PM
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More from the transcript of oral questions at the Supreme Court in the Fisher affirmative action case today:

 CHIEF JUSTICE ROBERTS: General Verrilli. 

[General Verrilli is the Obama Administration`s Solicitor General]

... JUSTICE ALITO: Does the United States [i.e., the Obama Administration] agree  with Mr. Garre that African American and Hispanic  applicants from privileged backgrounds deserve a  preference?

 GENERAL VERRILLI: I understand that  differently, Justice Alito. Here`s how we understand  what is going on with respect to the admissions process  in the University of Texas, and I am going to address it  directly.  I just think it needs a bit of context to do  so.

 The Top 10 Percent Plan certainly does  produce some ethnic diversity. Significant numbers get  in. The problem is the university can`t control that  diversity in the same way it can with respect to the  25 percent of the class that is admitted through the  holistic process.

 So my understanding of what the university  here is looking to do, and what universities generally  are looking to do in this circumstance, is not to grant  a preference for privilege, but to make individualized  decisions about applicants who will directly further the  educational mission. For example, they will look for  individuals who will play against racial stereotypes  just by what they bring: 

[In other words, economically privileged blacks and Hispanics should also be personally given special legal privileges in order to undermine the stereotype of blacks and Hispanics as disprivileged. It`s a tough job but somebody`s gotta do it!]

The African American fencer;  the Hispanic who has—who has mastered classical  Greek. 

[I love the General`s pause before coming up with the example of the Hispanic who gets into UT despite presumably mediocre grades and test scores but "who has—who has mastered classical Greek." His pause as he tries to come up with an example reminds me of Waugh`s Scoop where novice foreign correspondent William Boot is shown into the office of newspaper magnate Lord Copper and gets some advice on covering wars in Africa: There are two valuable rules for a special correspondent — Travel Light and Be Prepared. Have nothing which in a case of emergency you cannot carry in your own hands. But remember that the unexpected always happens. Little things we take for granted at home, like...” he looked about him, seeking a happy example; the room, though spacious, was almost devoid of furniture; his eyes rested on a bust of Lady Copper; that would not do; then, resourcefully, he said: “...like a coil of rope or a sheet of tin, may save your life in the wilds. I should take some cleft sticks with you. I remember Hitchcock — Sir Jocelyn Hitchcock, a man who used to work for me once; smart enough fellow in his way, but limited, very little historical backing — I remember him saying that in Africa he always sent his despatches in a cleft stick. It struck me as a very useful tip. Take plenty.]

 They can also look for people who have a  demonstrated track record of -­

JUSTICE ALITO: If you have two applicants  who are absolutely the same in every respect: They both  come from affluent backgrounds, well-educated parents.  One falls within two of the groups that are given a  preference, the other doesn`t. It`s a marginal case.  It`s the last—the last position available in the  class. Under the Texas plan, one gets in; one doesn`t  get in. Now, do you agree with that or not?

 GENERAL VERRILLI: No. I think -­

JUSTICE ALITO: Do you agree with—do you  agree that that is an incorrect statement of the facts,  or do you agree that that`s an incorrect understanding  of the Equal Protection Clause?

 GENERAL VERRILLI: I think it`s both. I  think the—there is no automatic preference in Texas.  And I think this is right in the—it says at page 398a  of the Joint Appendix—the—they describe the  process as saying, "An applicant`s race is considered  only to the extent that the applicant, viewed  holistically, will contribute to the broader vision of  diversity desired by the university."

 JUSTICE SCALIA: Yes, but—but the  hypothetical is that the two applicants are entirely the  same in all other respects.

 GENERAL VERRILLI: Right. But the point -­

JUSTICE SCALIA: And if—if the ability to  give a racial preference means anything at all, it  certainly has to mean that, in the—in the  hypothetical given—given by Justice Alito, the  minority student gets in and the other one doesn`t.

 GENERAL VERRILLI: I disagree,  Justice Scalia. What the—Texas, I think, has made  clear—and I think this is a common feature of these  kinds of holistic approaches—that not everyone in an  underrepresented group gets a preference, gets a plus  factor.

 JUSTICE SCALIA: It`s not a matter of not  everyone; it`s a matter of two who are identical in all  other respects.

 GENERAL VERRILLI: Right.

 JUSTICE SCALIA: And what does the racial  preference mean if it doesn`t mean that in that  situation the minority applicant wins and the other one  loses?

 GENERAL VERRILLI: There may not be a racial  preference in that situation. It`s going to depend on a  holistic, individualized consideration of the applicant.

 JUSTICE KENNEDY: I don`t understand this  argument. I thought that the whole point is that  sometimes race has to be a tie-breaker and you are  saying that it isn`t. Well, then, we should just go  away. Then—then we should just say you can`t use  race, don`t worry about it.

 GENERAL VERRILLI: I don`t think it`s a  tie-breaker. I think it functions more subtly than  that, Justice Kennedy. 

[C`mon, that`s the best you can do, General? "More subtly"? What about "more ineffably"? "More transcendentally"? Lay it on thick, man! You have to get Kennedy`s vote.]

CHIEF JUSTICE ROBERTS: It doesn`t function  more subtly in every case. We have findings by both  courts below—and I`m reading from the court of  appeals opinion at Petitioner appendix page 33.

 "The district court found that race is  indisputably a meaningful factor that can make a  difference in the evaluation of a student`s  application." If it doesn`t make a difference, then we  have a clear case; they`re using race in a way that  doesn`t make a difference. The supposition has to be  that race is a determining factor.

 We`ve heard a lot about holistic and all  that. That`s fine. But unless it`s a determining  factor, in some cases they`re using race when it doesn`t  serve the purpose at all. That can`t be the situation.

 GENERAL VERRILLI: It can make a difference.  It just doesn`t invariably make a difference with  respect to every minority applicant, and that`s the  key -­

CHIEF JUSTICE ROBERTS: You have to agree  that it makes a difference in some cases.

 GENERAL VERRILLI: Yes, it does.

 CHIEF JUSTICE ROBERTS: Okay.

 GENERAL VERRILLI: But it doesn`t  necessarily make a difference in the situation that  Justice Alito posited -­

JUSTICE GINSBURG: But that`s the same -­ the same would be true in—of the Bakke plan, that in  some cases it`s going to make a difference. The same  would be true under Grutter. The same would be true  under the policies now in existence at the military  academies.

[In other words, we`ve been BSing Americans since Bakke in 1978 and we`d better not stop now, or embarrassing questions might be asked.]

 GENERAL VERRILLI: That—that is exactly  right, Justice Ginsburg, but the point is that it`s not  a mechanical factor.

[It`s an organic factor! No, it`s a supernatural factor! I`ve got it, it`s a metaphysical factor!]

 Now, with respect to the implementation  of—and the narrow tailoring inquiry, with respect to  the University`s implementation of this—of its  compelling interest, I do think it`s clear that,  although the Petitioner says she`s challenging  implementation, that this plan meets every requirement  of Grutter and addresses the concern of Justice Kennedy  that you raised in dissent in Grutter. Whether Texas  had to or not, it did address that concern.

 There`s no quota. Everyone competes against  everyone else. Race is not a mechanical automatic  factor. It`s an holistic individualized consideration. 

[Yeah, that`s the ticket: It`s a holistic factor! It`s an holistic individualized consideration!"]

And because of the way the process is structured, they  do not monitor the racial composition on an ongoing  basis. 

JUSTICE SOTOMAYOR: General, I think, as I  take your answer, is that the supposition of  Justice Alito`s question is truly impossible under this  system. There are not two identical candidates because  there are not identical mechanical factors that -­ except the 10 percent plan.

 Under the PIA, the factors are so varied, so  contextually set, that no two applicants ever could be  identical in the sense that they hypothesize.

[It`s a contextual factor!]

 GENERAL VERRILLI: That`s correct. They  make specific individualized judgments about each  applicant -­

JUSTICE SOTOMAYOR: Because no two people  can be the same -­

[It`s an in-the-mind-of-God factor.] 

CHIEF JUSTICE ROBERTS: To get back to what  we`re talking about

[Oooh, diss ...]

, you—as I understand it, race by  itself is taken into account, right? That`s the only  thing on the cover of the application; they take race  into account.

 And the district court found—and you`re  not challenging—that race makes a difference in some  cases, right?

 GENERAL VERRILLI: Yes. But the key,  Mr. Chief Justice, is the way it makes a difference.  And it makes a difference by casting the accomplishments  of the individual applicant in a particular light, or  the potential of an individual applicant in a particular  light.

 What—what universities are looking for  principally with respect to this individualized  consideration is what is this individual going to  contribute to our campus? And race can have a bearing  on that because it can have a bearing on evaluating what  they`ve accomplished, and it can have a bearing for the  reasons I tried to identify earlier to Justice Alito on  what they can bring to the table, what they can bring to  that freshman seminar, what they can bring to the  student government, what they can bring to the campus  environment -­

JUSTICE BREYER: All right, sir. But it is  the correct answer to Justice Alito`s—if there are  ever two applicants where the GPA, the test—the  grades, the SA1, SA2, leadership, activities, awards,  work experience, community service, family`s economic  status, school`s socioeconomic status, family`s  responsibility, single-parent home, languages other than  English spoken at home, and SAT score relative to  school`s average race, if you have a situation where  those—all those things were absolutely identical,  than the person would be admitted on the bounds of race. 

GENERAL VERRILLI: Not necessarily.

 (Laughter.)

[The audience gets the joke!]

... CHIEF JUSTICE ROBERTS: General, how—what  is your view on how we tell whether—when the  University has attained critical mass?

 GENERAL VERRILLI: I don`t think critical — I agree with my friend that critical mass is not a  number. I think it would be very ill-advised to suggest  that it is numerical.

 CHIEF JUSTICE ROBERTS: Okay. I`m hearing a  lot about what it`s not. I`d like to know what it is  because our responsibility is to decide whether this use  of race is narrowly tailored to achieving, under this  University`s view, critical mass.

 GENERAL VERRILLI: May I answer,  Mr. Chief Justice?

 CHIEF JUSTICE ROBERTS: Oh, yes.

 GENERAL VERRILLI: Thank you. I think—I don`t think that this is a  situation in which the Court simply affords complete  deference to the University`s judgment that it hasn`t  yet achieved the level of diversity that it needs to  accomplish its educational mission.

[Complete deference—that`s all we`re asking.]

 I think that the Court ought to—has to  make its own independent judgment. I think the way the  Court would go about making that independent judgment is  to look at the kind of information that the university  considered. That could be information about the  composition of the class. It could be information about  classroom diversity. It could be information about  retention and graduation rates. It could be information  about—that`s specific to the university`s context in  history. Is it a university that has had a history of  racial incidents and trouble or not? 

[If we haven`t had any racial incidents, we can get you some quick. Our Ed School professors are very obliging when it comes to racial incidents. You want a noose? We can get you a noose, believe me. There are ways, Dude. You don`t wanna know about it, believe me. Hell, we can get you a noose by 3 o`clock this afternoon.]

A series of  factors.

 And then what the Court`s got to do is  satisfy itself that the University has substantiated its  conclusion based on that—based on the information  it`s considered, that it needs to consider race to  further advance the educational goals that Grutter has  identified as a compelling interest.

 And I will say, I do think, as the number of  minority enrollees gets higher, the burden on the  university to do that is going to get harder to meet. 

But I don`t think—I don`t think there is a number,  and I don`t think it would be prudent for this Court to  suggest that there is a number, because it would raise  exactly the kind of problem that I—that I think  Justice Kennedy identified in the Grutter dissent of  creating hydraulic pressure towards that number.

 JUSTICE SCALIA: We should probably stop  calling it critical mass then, because mass, you know,  assumes numbers, either in size or a certain weight.

 GENERAL VERRILLI: I agree.

 JUSTICE SCALIA: So we should stop calling  it mass.

 GENERAL VERRILLI: I agree.

 JUSTICE SCALIA: Call it a cloud or  something like that.

 (Laughter.)

[Vapor?]

 GENERAL VERRILLI: I agree that critical  mass—the idea of critical mass 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.

[In other words, nobody should think nuthin` about nuthin`, the Supreme Court should just let the public universities do whatever they feel like. If you can`t trust college administrators, who can you trust?]

 

[For the Supreme Court`s questioning of the U. of Texas lawyer, which is also pretty amusing, click here.]

 

[It`s hard not to be reminded once again of Theodore Dalrymple`s insight:

 “In my study of communist societies, I came to the conclusion that the purpose of communist propaganda was not to persuade or convince, not to inform, but to humiliate; and therefore, the less it corresponded to reality the better. ... I think if you examine political correctness, it has the same effect and is intended to.”]