Instant Analysis: Fisher v. University of Texas, Austin

October 10th, 2012

The transcript is here. I have class at 2 CDT, so my analysis will be brief here, but I’ll finish it later.

Petitioner (Abigail Fisher)

Bert Rein, a bit eager to get started, opened with the Mr. Chief Justice line before the Chief announced the case. Simon didn’t say so!

MR. REIN: Mr. Chief Justice, and may it please the Court -­ CHIEF JUSTICE ROBERTS: Well, I get to say that this is Case Number 11-345, Fisher against the University of Texas at Austin. And you get to say -­ ORAL ARGUMENT OF BERT W. REIN ON BEHALF OF THE PETITIONER MR. REIN: Mr. Chief Justice, General Suter trained me too well. Mr. Chief Justice, and members of the Court, and may it please the Court:

Justices Ginsburg and Sotomayor opened up by asking about standing, and whether the fact that Fisher would not have been admitted regardless of her race, and because Fisher has since graduated from LSU, and has no intent of enrolling at UT.

MR. REIN: — the denial of her right to equal treatment is a constitutional injury in and of itself, and we had claimed certain damages on that. We — we started the case before it was clear whether she would or wouldn’t be admitted.

Rein and Sotomayor talked over each other for a bit. Sotomayor kept asking about damages, Rein repeating that it didn’t matter whether she would have been ultimately admitted. Scalia jumps in and notes that there have been discrimination cases involving “state contracting, and we haven’t required the person who was discriminated against because of race to prove that he would have gotten the contract otherwise.”

JUSTICE SCALIA: Her claim is not necessarily that she would have been — would have been admitted, but that she was denied a fair chance in the admission lottery. Just as when a person is denied participation in the contracting lottery, he has suffered an injury.

Then Breyer drops the bomb–he asked if the petitioners aimed to overturn Grutter. He alludes to the Grutter 25-year clock (see my countdownhere) and says only 9 years have elapsed.

JUSTICE BREYER: If you are going to the merits, I want to know whether you want us to — or are asking us to overrule Grutter. Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed. And so, are you? And, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on?

Fisher is not seeking to overturn Grutter.

 MR. REIN: Justice Breyer, we have said very carefully we were not trying to change the Court’s disposition of the issue in Grutter, could there be a legitimate, a compelling interest in moving — in using race to establish a diverse class. What — the problem that we’ve encountered throughout the case is there are varying understandings, not of the legitimacy of the interest, but how you get there; is it necessary to use race to achieve that interest; what does a critical mass -­

And poor Justice Breyer is worried about not having enough time to talk at oral arguments (lol)

JUSTICE BREYER: Well, how do you want to argue it right now in the next ten minutes? I’m interested because I have a very short time to get my question out, and I need to know how you are going to argue it. MR. REIN: Well, Justice Breyer, our argument is we can satisfy Grutter if it’s properly read.

And then SGB’s line of questioning is rudely interrupted-by RGB, who calls the plan at issue here “more modest” than the plan upheld in Michigan. Justice Scalia pokes fun at Justice O’Connor’s 25-year maxim, and notes that this is not the holding of the case.

JUSTICE SCALIA: And by the way, do you think that Grutter — this goes to Justice Breyer’s question — do you think that Grutter held that there is no more affirmative action in higher education after 2028? MR. REIN: No, I don’t. JUSTICE SCALIA: Was that the holding of Grutter?

The WSJ reported that Justice O’Connor was sitting in the front row, looking quite sad. Next Justice Sotomayor asked further about the critical mass, and how much it is.

JUSTICE SOTOMAYOR: So could you tell me what a critical mass was? I’m looking at the number of blacks in the University of Texas system. Pre-Grutter, when the State was indisputably still segregating, it was 4 percent. Today, under the post-Grutter system, it’s 6 percent. The 2 percent increase is enough for you, even though the State population is at 12 percent? Somehow, they’ve reached a critical mass with just the 2 percent increase?

And this colloquy is important–I think Justice Sotomayor may be speaking personally here.

JUSTICE SOTOMAYOR: No — putting aside — I don’t — I’m not going to quarrel with you that if demographics alone were being used, I would be somewhat concerned. But you can’t seriously suggest that demographics aren’t a factor to be looked at in combination with how isolated or not isolated your student body is actually reporting itself to feel? MR. REIN: Well, I think if you start to split out subgroups of minorities, you mistake I think what I think is the proper thrust of Grutter, or at least ought to be. JUSTICE SOTOMAYOR: It might be — it might be insulting to some to be thrown into a pot.

But isn’t that what asking a student to check a box about race does? Throw someone into a pot? After more arguments about the meaning of critical mass, and determining when it is reached, petitioner stated that it is not his burden.

JUSTICE SOTOMAYOR: So what are you telling us is the standard of critical mass? At what point does a district court or a university know that it doesn’t have to do any more to equalize the desegregation that has happened in that particular State over decades, that it’s now going to be stuck at a fixed number and it has to change its rules. What’s that fixed number? MR. REIN: We — it’s not our burden to establish the number. It was the burden of the University of Texas to determine whether -­

Defining a “critical mass” without reference to a quota (forbidden) proved difficult. Petitioner asserted that without defining a critical mass, it will be impossible to determine if it is ever reached, and thus impossible to determine if a program is narrowly tailored.

MR. REIN: Put — put aside whether this was necessary and whether it was an appropriate last resort in a quest for diversity and critical mass, because Grutter’s not without limits. But I’ll put that aside and let me come directly to your question. First of all, if you think about narrow tailoring, you can’t tailor to the unknown. If you have no range of evaluation, if you have no understanding of what critical mass means, you can’t tailor to it.

JUSTICE SOTOMAYOR: So you have to set a quota for critical mass?

MR. REIN: No. There’s a huge difference, and it’s an important one that is not well put out by the University of Texas. Having a range, a view as to what would be an appropriate level of comfort, critical mass, as defined in Grutter, allows you to evaluate where you are -­

JUSTICE SOTOMAYOR: So we won’t call it a quota; we’ll call it a goal, something Grutter said you shouldn’t have. MR. REIN: Well, Justice Sotomayor, I think it’s very important to distinguish between the operative use of that range, in other words, that’s where we are, and we’re going to use race until we get there every year in consideration of each application, which was a problem.

JUSTICE SOTOMAYOR: Boy, it sounds awfully like a quota to me that Grutter said you should not be doing, that you shouldn’t be setting goals, that you shouldn’t be setting quotas; you should be setting an individualized assessment of the applicants. Tell me how this system doesn’t do that.

MR. REIN: This system doesn’t — I mean, it’s not narrowly tailored because it doesn’t fit. There are certain forms of Grutter that it follows. It -­

Justice Kennedy inquired what problem the petitioner had with the affirmative action program, in light of the fact that it admits so few minorities (that is, those who are not already admitted under the top 10% plan):

JUSTICE KENNEDY: Could you comment on this, and then I hope we can get back to Justice Alito’s question. You argue that the University’s race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities. And I had trouble with that reading the brief. I said, well, if it’s so few, then what’s the problem.

MR. REIN: Well, it’s a question -­

JUSTICE KENNEDY: Then — let’s assume -­

MR. REIN: Excuse me, Justice Kennedy.

JUSTICE KENNEDY: — that it resulted in the admission of many minorities. Then you’d come back and say, oh, well, this is — this shows that we were probably wrongly excluded. I -­

MR. REIN: Well -­ JUSTICE KENNEDY: — I see an inconsistency here.

MR. REIN: Well -­

JUSTICE KENNEDY: Is it — are you saying that you shouldn’t impose this hurt or this injury, generally, for so little benefit; is that the point?

RBG makes a good point. Though the Top 10% is facially neutral, is was created for the purpose of increasing minority enrollment.

 JUSTICE GINSBURG: But you say, and that’s okay because it’s — it’s race-neutral, but is it really? I mean, the — the only reason that they instituted the 10 percent plan was to increase minority enrollment.

As Ilya Somin noted in this post, the top 10% plan was merely an end-run around transparent race-conscious measures.

 If the Court rules that explicit race-based affirmative action is unconstitutional where “diversity” can be achieved by facially neutral plans like the ten percent plan, the result is likely to be a raft of admissions policies that appear race-neutral, but actually are deliberate attempts to achieve a particular racial balance by relying on admissions criteria that correlate with race (which is the reason why the ten percent plan was enacted in the first place, after a federal court invalidated the University of Texas’ racially explicit affirmative action policy in 1996). In this way, racial preferences in admissions will not be eliminated, but will merely be driven underground and become less transparent.

Both Justices Breyer and Sotomayor asked whether federal judges should be dictating how schools should manage their admission policies:

JUSTICE BREYER: Okay. Now, is that a lot? Is that a little? There are several thousand admissions officers in the United States, several thousand universities, and what is it we’re going to say here that wasn’t already said in Grutter that isn’t going to take hundreds or thousands of these people and have Federal judges dictating the policy of admission of all these universities?

JUSTICE SOTOMAYOR: So now we’re going to tell the universities how to run and how to weigh qualifications, too?

Then AMK asks point blank how this law violates strict scrutiny:

JUSTICE KENNEDY: Well, perhaps you could summarize by saying — by telling us, from your point of view, this plan fails strict scrutiny on one or two or both levels, (a), because the objective is inappropriate or ill defined, and, (b), because of the implementation is defective. Which or both of those are you arguing?

MR. REIN: We have argued both, and we continue to argue both. It is not a necessary -­

JUSTICE KENNEDY: And in what respect does this plan fail strict scrutiny under either of those -­ under both of those categories?

MR. REIN: Okay. Under the category — the first category, was it a necessary means of pursuing a compelling interest, we don’t believe they’ve shown any necessity for doing what they were doing. And certainly, it — race should have been a last resort; it was a first resort. That’s, in a nutshell, that prong of it. And in order — and they failed in every respect. If you go to narrow tailoring, what we are saying is they didn’t consider alternatives, and their treatment of, as we have pointed out, Asian Americans and Hispanics makes a — an incomprehensible distinction. They say, we don’t worry about Asians, there are a lot of Asians, it’s a demographic measure, which is a forbidden measure. They are in excess of their share of the Texas population. But if you are trying to find individual comfort levels, if you are breaking it down between African Americans and — and Hispanics, the -­

Respondent (University of Texas, Austin)

The University of Texas, which was represented by the Texas Solicitor General at the District Court and Court of Appeals level decided to hire Greg Garre and Maureen Mahoney (who argued Grutter) at the Supreme Court. Garre argued today.

Right of the bat, the Chief leads Garre down a difficult trail of what it means to check the “Hispanic” box on a a college application.

CHIEF JUSTICE ROBERTS: Counsel, before — I need to figure out exactly what these numbers mean. Should someone who is one-quarter Hispanic check the Hispanic box or some different box?

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?

MR. GARRE: Your Honor, that was — they would make that self-determination, Your Honor. If anyone, in any part of the application, violated some honor code then that could come out -­

CHIEF JUSTICE ROBERTS: Would it violate the honor code for someone who is one-eighth Hispanic and says, I identify as Hispanic, to check the Hispanic box?

MR. GARRE: I don’t think — I don’t think it would, Your Honor. I don’t think that that issue would be any different than the plan upheld in Grutter or the Harvard plan or in Bakke.

CHIEF JUSTICE ROBERTS: You don’t check in any way the racial identification?

MR. GARRE: We do not, Your Honor, and no college in America, the Ivy Leagues, the Little Ivy Leagues, that I’m aware of.

CHIEF JUSTICE ROBERTS: So how do you know you have 15 percent African American — Hispanic or 15 percent minority?

Then things go from bad to worse for Garre. Scalia teases out the critical mass concept, and argues that diversity on campus is not enough–they need diversity in each class. How can that be assessed?

JUSTICE SCALIA: And how do they decide? You know, it’s — they want not just a critical mass in the school at large, but class by class? How do they figure out that particular classes don’t have enough? What, somebody walks in the room and looks them over to see who looks — who looks Asian, who looks black, who looks Hispanic? Is that how it’s done?

MR. GARRE: No, Your Honor, and let me try to be clear on this. The university has never asserted a compelling interest in any specific diversity in every single classroom. It has simply looked to classroom diversity as one dimension of student body diversity.

JUSTICE SCALIA: I don’t know what you are talking about. I mean it is either a factor that is validly in this case or it isn’t. Do they look to individual classroom diversity or not? And if so, how do they decide when classes are diverse?

Then the Chief gets ticked:

JUSTICE SCALIA: Yes, it doesn’t explain to me how they go about, classroom by classroom, deciding how many minorities there are.

MR. GARRE: Your Honor, there are student lists in each classroom. The student lists —

CHIEF JUSTICE ROBERTS: There are student lists in each classroom that have race identified with the students.

MR. GARRE: No, no, Your Honor. Of course, each classroom, the university knows which students are taking its classes and one can then, if you want to gauge diversity in the classrooms, go back -­

After some questioning from Justice Alito about how many minorities are admitted to UT as a result of the affirmative action program, independent of the top 10% question–to which Garre had no answer–the Chief asked him point blank about the “critical mass.”

CHIEF JUSTICE ROBERTS: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward?

MR. GARRE: Your Honor, we don’t have one. And this Court in Grutter –

CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?

MR. GARRE: To look to the same criteria of this Court in Grutter. This Court in Grutter specifically rejected the notion that you could come up with a fixed percentage. Now

JUSTICE ALITO: Does critical mass vary from group to group? Does it vary from State to State?

MR. GARRE: It certainly is contextual. I think it could vary, Your Honor…

And that context is not based on the population of Texas.

Next, RBG asks if the Top 10% plan was so effective, why did Texas need further race-conscious measures?

Scalia hits Garre over what I think is one of the main failings of the diversity rationale–the notion that racial diversity is necessary in order to achieve intellectual diversity:

MR. GARRE: Because, Your Honor, as is true for any group, and the Harvard plan that this Court approved in Bakke specifically recognized this, you would want representatives and different viewpoints from individuals within the same — the same racial group, just as you would from individuals outside of that.

JUSTICE SCALIA: What kind of viewpoints? I mean, are they political viewpoints?

MR. GARRE: Anyone’s experiences, where they grew up, the situations that they — that they experience in their lives are going to affect their viewpoints.

JUSTICE SCALIA: But this has nothing to do with racial diversity. I mean, you’re talking about something else.

Of course race could be used as proxy to determine intellectual diversity, but it could hardly be said to be narrow tailoring. Asking questions about a student’s life experiences for example–though it would be much tougher for admission officers to consider–would lead to more accurate, and less race-conscious, measures of breadth of experiences.

Next Justice Alito asks the question that David Bernstein thinks loses the case for UT:

MR. GARRE: If you look at the admissions data that we cite on page 34 of our brief, it shows the breakdown of applicants under the holistic plan and the percentage plan. And I don’t think it’s been seriously disputed in this case to this point that, although the percentage plan certainly helps with minority admissions, by and large, the — the minorities who are admitted tend to come from segregated, racially-identifiable schools.
JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before. The top 10 percent plan admits lots of African Americans — lots of Hispanics and a fair number of African Americans. But you say, well, it’s — it’s faulty, because it doesn’t admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas.
Now, that’s your argument? If you have -you have an applicant whose parents are — let’s say they’re — one of them is a partner in your law firm in Texas, another one is a part — is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -parents both have graduate degrees. They deserve a leg-up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?
MR. GARRE: No, Your Honor. And let me -let me answer the question.First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.
JUSTICE ALITO: Well, how can the answer to that question be no, because being an African American or being a Hispanic is a plus factor.
MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.
JUSTICE KENNEDY: So what you’re saying is that what counts is race above all.
MR. GARRE: No, Your Honor, what counts is different experiences
JUSTICE KENNEDY: Well, that’s the necessary — that’s the necessary response to Justice Alito’s question.
MR. GARRE: Well, Your Honor, what we want is different experiences that are going to — that are going to come on campus –
JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that’s race.

Garre said what he didn’t want to say–and what we all know. UT is looking for certain races, namely Hispanics and African-Americans. But they can’t say that. So they use the diversity rationale. But at heart, when pressed, he must admit that they are looking for specific races–rather than general notions of diversity–and this is exactly the rationale that Grutter does not allow.

Chief Justice Roberts asks again, to no avail, what the critical mass is, and how should the Court determine if the policy is narrowly tailored without knowing what the mass is. Justice Sotomayor also chimes in.

CHIEF JUSTICE ROBERTS: Grutter said there has to be a logical end point to your use of race. What is the logical end point? When will I know that you’ve reached a critical mass?

JUSTICE SOTOMAYOR: Mr. Garre, I think that the issue that my colleagues are asking is, at what point and when do we stop deferring to the University’s judgment that race is still necessary? That’s the bottom line of this case. And you’re saying, and I think rightly because of our cases, that you can’t set a quota, because that’s what our cases say you can’t do. So if we’re not going to set a quota, what do you think is the standard we apply to make a judgment?

Will 25 years cover it?

JUSTICE SCALIA: But that holds for only -­ only another what, 16 years, right? Sixteen more years, and you’re going to call it all off.

MR. GARRE: Your Honor, we don’t read Grutter as establishing that kind of time clock. We are looking at this -­

JUSTICE SCALIA: But you’re appealing to Grutter, and that’s what it said.

I bet Justice O’Connor was wincing at this point. I can’t wait for Justice Stevens’s next speech where he criticizes this case, said no one, ever.

Alito asks point blank about a critical mass of Asian-Americans.

JUSTICE ALITO: Well, in terms of diversity, how do you justify lumping together all Asian Americans? Do you think — do you have a critical mass of Filipino Americans? Cambodian Americans -­

MR. GARRE: Your Honor -­

JUSTICE ALITO: — Cambodian Americans?

MR. GARRE: — the common form that’s used has Asian American, but also, next to that, has a form that says country of origin where that can be spelled out.

JUSTICE ALITO: But do you have a critical mass as to all the subgroups that fall within this enormous group of Asian Americans?

MR. GARRE: Your Honor, we’ve looked to whether or not we have a critical mass of underrepresented minorities, which is precisely what the Grutter decision asks us to do.

After some more questioning, Garre turns to the jurisdictional issue, and asserts that the declaratory and injunctive relief have dropped out because she graduated, and the only remaining issue is the request for monetary damages–namely her application fees.

Amicus (United States)

Alito opens up and asks Verrilli right off the bat if specific groups–disadvantaged Hispanics and African Americans–should receive a preference, and the SG tap-dances around the question.

JUSTICE ALITO: Does the United States 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.

Alito tries to pin the SG down about asking about equally qualified candidates–one white, one black–Verrilli continues to tap-dance.

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?


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.”

Scalia repeats the question, and asks about identical applicants, and the SG keeps turning to holistic considerations.

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


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.

AMK asks point-blank whether race can be a tie-breaking factor:

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.

RBG swoops in to the rescue, and asserts that this holistic type of use of race was at issue in Bakke, Grutter, and military recruiting.

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.

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

Today’s oral arguments were brought to you by the letter H, for Holistic. That is, till Mitt Romney cuts funding for Sesame Street, in which case today’s arguments will be brought to you by the number 0, for that is how many dollars PBS will receive from the feds.

Sotomayor returns to Alito’s question, and makes what I think is a fair point–no two students are ever actually equal in all respects except race.

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.

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

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

Of course that is true, but to a busy admissions officer, students are invariably reduced to basic factors like SAT score, GPA, and other factors. Two students look a lot more alike through those narrow lenses.

And, a serious burn to Texas A&M and Texas Tech, Justice Alito asks about a ROTC candidate who is denied admission to UT:

JUSTICE ALITO: — because the time is about to expire, so you’ve got a marginal candidate who wants to go to the University of Texas at Austin and is also interested in ROTC. Maybe if race is taken into account, the candidate gets in. Maybe if it isn’t, he doesn’t get in. How does that impact the military? The candidate will then probably go to Texas A&M or Texas Tech? Is it your position that he will be an inferior military officer if he went to one of those schools?

Hook ’em Sam!

The SG poo poos the notion of 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 . . . 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.

And in the SG’s closing statement, reminiscent of his closing argument in NFIB v. Sebelius, he appeals directly to AMK:

I think it is important, Your Honors, not just to the 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.

Pretty patronizing if you ask me.

Petitioner Rebuttal.

The Chief, in giving Rein 10 minutes, makes a quip about keeping the playing field level–the very type of argument used to support affirmative action. Snap. JGR set up Rein perfectly.

CHIEF JUSTICE ROBERTS: Thank you, General. Mr. Rein, 10 minutes.


MR. REIN: Thank you, Mr. Chief Justice. That’s more than I expected.

CHIEF JUSTICE ROBERTS: Just keeping the playing field level.

MR. REIN: Well, that’s what we’re seeking in this case, Mr. Chief Justice, a level playing field for Abby Fisher. So it’s most apt at this point.

Justice Sotomayor asks further about whether the damages are limited to the $100 application fee.

Towards the end, Sotomayor got in the zinger of the day.

JUSTICE SOTOMAYOR: 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.

You heard me!

And that’s a wrap!