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In reading Taleb’s work, I have often wondered whether Black Swan Theory is inherently libertarian, or is it Burkean, or a little bit of both. In Antifragile, Taleb alludes to this point by describing his philosophy as Non-Naive Interventionism.

Let me warn against misinterpreting the message here. The argument is not against the notion of intervention; in fact I showed above that I am equally worried about underintervention when it is truly necessary. I am just warning against naive intervention and lack of awareness and acceptance of harm done by it. It is certain that the message will be misinterpreted, for a while. When I wrote Fooled by Randomness, which argues— a relative of this message— that we have a tendency to underestimate the role of randomness in human affairs, summarized as “it is more random than you think,” the message in the media became “it’s all random” or “it’s all dumb luck,” an illustration of the Procrustean bed that changes by reducing. During a radio interview, when I tried explaining to the journalist the nuance and the difference between the two statements I was told that I was “too complicated”; so I simply walked out of the studio, leaving them in the lurch. The depressing part is that those people who were committing such mistakes were educated journalists entrusted to represent the world to us lay persons. Here, all I am saying is that we need to avoid being blind to the natural antifragility of systems, their ability to take care of themselves, and fight our tendency to harm and fragilize them by not giving them a chance to do so. As we saw with the overzealous editor, over-intervention comes with under-intervention. Indeed, as in medicine, we tend to over-intervene in areas with minimal benefits (and large risks) while under-intervening in areas in which intervention is necessary, like emergencies. So the message here is in favor of staunch intervention in some areas, such as ecology or to limit the economic distortions and moral hazard caused by large corporations. What should we control? As a rule, intervening to limit size (of companies, airports, or sources of pollution), concentration, and speed are beneficial in reducing Black Swan risks. These actions may be devoid of iatrogenics— but it is hard to get governments to limit the size of government. For instance, it has been argued since the 1970s that limiting speed on the highway (and enforcing it) leads to an extremely effective increase in safety. This can be plausible because risks of accidents increase disproportionally (that is, nonlinearly) with speed, and humans are not ancestrally equipped with such intuition. Someone recklessly driving a huge vehicle on the highway is endangering your safety and needs to be stopped before he hits your convertible Mini— or put in a situation in which he is the one exiting the gene pool, not you. Speed is from modernity, and I am always suspicious of hidden fragilities coming from the post-natural— we will further show a technical proof in Chapters 18

But I also buy the opposite argument that regulating street signs does not seem to reduce risks; drivers become more placid. Experiments show that alertness is weakened when one relinquishes control to the system (again, lack of overcompensation). Motorists need the stressors and tension coming from the feeling of danger to feed their attention and risk controls, rather than some external regulator— fewer pedestrians die jaywalking than using regulated crossings. Some libertarians use the example of Drachten, a town in the Netherlands, in which a dream experiment was conducted. All street signs were removed. The deregulation led to an increase in safety, confirming the antifragility of attention at work, how it is whetted by a sense of danger and responsibility. As a result, many German and Dutch towns have reduced the number of street signs. We saw a version of the Drachten effect in Chapter 2 in the discussion of the automation of planes, which produces the exact opposite effect than what is intended by making pilots lose alertness. But one needs to be careful not to overgeneralize the Drachten effect, as it does not imply the effectiveness of removing all rules from society. As I said earlier, speed on the highway responds to a different dynamic and its risks are different.

Alas, it has been hard for me to fit these ideas about fragility and antifragility within the current U.S. political discourse— that beastly two-fossil system. Most of the time, the Democratic side of the U.S. spectrum favors hyper-intervention, unconditional regulation, and large government, while the Republican side loves large corporations, unconditional deregulation, and militarism— both are the same to me here. They are even more the same when it comes to debt, as both sides have tended to encourage indebtedness on the part of citizens, corporations, and government (which brings fragility and kills antifragility). I believe that both markets and governments are unintelligent when it comes to Black Swan events— though, again, not Mother Nature, thanks to her construction, or more ancient types of markets (like the souks), unlike the ones we have now. Let me simplify my take on intervention. To me it is mostly about having a systematic protocol to determine when to intervene and when to leave systems alone. And we may need to intervene to control the iatrogenics of modernity— particularly the large-scale harm to the environment and the concentration of potential (though not yet manifested) damage, the kind of thing we only notice when it is too late. The ideas advanced here are not political, but risk-management based. I do not have a political affiliation or allegiance to a specific party; rather, I am introducing the idea of harm and fragility into the vocabulary so we can formulate appropriate policies to ensure we don’t end up blowing up the planet and ourselves.

Instead, he only seeks non-naive interventionism.

Also, Taleb writes about the urge of “not doing nothing.”

I have previously blogged about the importance and qualifications of legislators who seek to defend laws they wrote in court.

Now, Senators McCain, Graham, and Ayotte, not content to simply submit an amicus brief, want argument time in an upcoming case that considers the National Defense Authorization Act–a law the trio contributed to. Unsurprisingly, their view differs from that of President Obama’s Justice Department, which is litigating the case.

In a brief authored by David Rivkin and Lee Casey (the progenitors of the suit agains the ACA in Florida), and my former classmate Andrew Grossman, the Senators request argument time to address “the history and purpose of the statutory provision under review and the scope of Congress’s power under the Declare War Clause.”

Senate Amici played a leadership role in the drafting and enactment of Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (“NDAA”), making them uniquely qualified to explain its history and purpose. And as Senators, Senate Amici have a strong interest in safeguarding Congress’s constitutionally-prescribed role in matters of national security and war. While the Senate Amici join the Appellants in seeking reversal of the decision below and dismissal of this litigation, their interests and arguments are distinct from those of the Appellants and may aid the Court in resolution of this matter.

The brief argues that the Senators will defend what the Administration can’t:

Although the Appellants, in defending Section 1021, cite scattered passages from its legislative history, they (quite understandably) do not address the broader policy dispute that led to the provision, and may (quite understandably) find it awkward in oral argument to address such issues in thorough fashion. Senate Amici, however, have no such inhibitions

The brief cites a “unique institutional interest”:

The Senate Amici’s participation in oral argument is also warranted due to their unique institutional interest in the Court’s possible resolution of the constitutional question of the scope of congressional power under the Declare War Clause. As members of the Senate, the Senate Amici have a direct and distinct interest in preserving Congress’s power to authorize exercise of the President’s war powers in such detail and in such ways as Congress sees fit. By contrast, the Appellants’ chief interest is preservation of the President’s flexibility in the interpretation and execution of war powers authorizations, a quite different matter and one that is in some conflict with Congress’s institutional interests.

Huh? That’s what separation of powers is for. Congress passes laws, knowing that the Executive will enforce it.  Congress preserves their institutional interests by passing laws. Not defending them in Court.

In other words, should the Court move beyond the threshold justiciability issues raised by the Appellants, the Senate Amici have a unique position on Section 1021’s constitutionality, one that is distinct, and potentially in conflict with, the Appellants’ argumentation. Absent participation by Senate Amici, the views of the co-equal branch of the Federal Government whose action is the subject of this case will go unaired

Being a co-equal branch doesn’t allow Congress a say in court.

I recognize that the Senators are participating as Amicus, but would the Senators think they have independent standing to intervene as a party? I never understood why legislators have standing to defend their own laws (yes I am looking at you Bipartisan Legal Advisory Group in DOMA litigation). Of course, when a President fails to defend a law in court, allowing the legislators to step in makes some sense. But here, Obama is actually defending the NDAA. So why are the Senators getting involved? Well, Obama isn’t defending the law in the way McCain, Graham, and Ayotte would like.

They said their piece when enacting the law. Anything they say now is pure post-enactment legislative history, motivated by a desire to affect the application of a staute.

They may be uniquely qualified to explain the statute’s history and purpose, but didn’t they already do that? In the legislative history? In fact, the brief cites statements made by these three in the legislative record! (That’s what he said).

Now the brief offers a particularly unreliable form of post-enactment legislative history–statements made by legislators years after a law is enacted geared to a specific conflict that the enactors of the law likely did not forsee. Further, we have a brief by only three senators who profess an interest in “waging war against America’s terrorist enemies.” What about other members of congress who do not share that aim (I’m sure they exist)? Should their legislative history be discounted? Should the fact that they didn’t submit a brief be dispositive?

Why bother engaging in statutory interpretation when those that enacted the law, in an earlier congress, can just tell the courts how the law should be applied?

And, because I never write about politics, please let me offer the headline “Wile E. Ayotte” to any tabloids. (I only found a few google hits for that). It’s too good to pass u p.

And is it wrong that I knew Ayotte from her SCOTUS case v. Planned Parenthood before I realized she was also a U.S. Senator? Article III is the last, but not least of the branches.

Last week I presented my contribution to the Chapman Law Review’s symposium on libertarian thought at Larry Solum’s Advanced Constitutional Law Colloquium. I received some excellent feedback, and significantly reworked my paper. What was previously titled “Five Lessons from the Health Care Cases,” is now titled “Back to the Future of Originalism.”

The biggest changes were made in the section I wrote about popular originalism. I’ll paste that section in its entirety here:

 IV.  Popular Originalism? 

The unsettling of our constitutional gestalt between 2009 and 2012 may be attributed to two important, and interrelated factors inherent in the challenge to the Affordable Care Act: legal theories, and the social movements supporting them. I do not assert that the popular support for the challenge solely determined the constitutionality of the mandate. Nor do I claim that the theories of the commerce and necessary and proper clauses were adequate to render the mandate unconstitutional.

Neither approach was by itself enough. Here, the whole was greater than the sum of its parts. The popular constitutionalist movement, and the theoretical arguments were both necessary, but not sufficient conditions to advance the challenge. However both fronts, when engaged in tandem proved quite potent—particularly because the original understanding of the Constitution animated both avenues.

Originalism’s tug was felt in both aspects of this challenge. The legal arguments, though grounded in terms of the Court’s modern jurisprudence—acquiescing to many nonoriginalist precedents—gravitated towards an originalist understanding of enumerated powers, federalism, and individual liberty. Likewise, the social movement opposed to the law, embodied most prominently in the Tea Party, was organized loosely around an originalist vision of the Constitution.[1] In this sense, the two-pronged approach of popular constitutionalism and legalism were in the orbit of originalism, even if originalism was not at the fore of the challenge. This approach is similar to what Rebecca Zietlow has referred to as popular originalism.[2]

Indeed, some of the most successful constitutional movements in our nation harkened back to our foundational charter. The Abolitionist Movement, led prominently by Lysander Spooner cited the Declaration of Independence’s promise of equality, and the Constitution’s omission of any reference to slavery to support the legal argument that slavery was unconstitutional. Susan B. Anthony, leader of the Suffrage Movement, broadly read the 14^th Amendment to guarantee equality to “all persons.”

In many respects, District of Columbia v. Heller could be understood as a product of popular originalism.[3] The legal theories that supported the individual right to keep and bear arms were supported by originalism. Likewise, the social movement buttressing firearm ownership—led most prominently by the National Rifle Association—waxed nostalgia for the liberties of the revolutionary-era minutemen.

What made the evolution of NFIB v. Sebelius so unprecedented, at least as far as constitutional challenges go, is the seamless union at all levels of government and the populace of the theories and the movement. The political and social climate in which this challenge came of age created a veritable perfect storm for this popular originalist case. Learning how to replicate this dual-focused phenomenon may be the most enduring lesson for future constitutional challenges.

---

[1] See Jared A. Goldstein, Can Popular Constitutionalism Survive the Tea Party, 105 Nw. U. L. Rev. Colloquy 288, 298 (2011) (“The Tea Party movement is a surprising hybrid of these two positions, a sort of popular originalism, a popular movement that purports to advance originalist interpretations.”).

[2] See Rebecca Zietlow, Popular Originalism? The Tea Party Movement and Constitutional Theory, 64 Fla. L. Rev. 483, 487 (2012) (“Finally, and perhaps most importantly, originalism and popular constitutionalism can lead in very different directions when determining the relationship between democratic participation and constitutional development. The popular originalism of the Tea Party raises the issue of whether it is possible to be faithful to the original meaning of the Constitution while engaging in democratic politics. If not, popular originalism could paradoxically lead to a reduction of the role of democracy in constitutional interpretation.”). See also, Jared Goldstein, The Tea Party Movement and the Perils of Popular Originalism, 53 Ariz. L. Rev. 827 (2011); Lee Strang, Originalism as Popular Constitutionalism?, 87 Notre Dame L. Rev. 253, 254 (“there is no necessary analytical connection or disjunction between” originalism and popular constitutionalism); Jamal Greene, Selling Originalism, 97 Geo. L. J. 658, 672 (2009).

[3] For a related, but different take on Heller’s popular constitutionalism, see Reva Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191, 192-193 (2008) (“ . . . Heller’s originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. It situates originalism’s claim to ground judicial decisionmaking outside of politics in the constitutional politics of the late twentieth century, and demonstrates how Heller respects claims and com- promises forged in social movement conflict over the right to bear arms in the decades after Brown v. Board of Education.”).

Oh, one note about the title. I was trying to think of a witty way of capturing the fact that the originalism in NFIB v. Sebelius was in many respects grounded in notions of popular constitutoinalism. Then it hit me. Back to the future of originialism. Its a triple oxymoron, and pays homage to one of my favorite movies. So I did what I usually do when I think of something novel, and google it. I had previously thought of calling the article “Popular Originalism,” but an article by that name had already been published. So I googled “Back to the Future of Originalism.” Unfortunately, there were hits on Google for that title. Fortunately, it was from an article I wrote last year–which I had totally forgotten about. #JoshProblems.

On the eve of Superstorm Sandy, after the city issued mandatory evacuation orders for much of Staten Island’s coast, I queried if the state could force someone to evacuate.

The National Weather Service has some intense warning that ranged from logic, to guilt, to emotion.

SOME IMPORTANT NOTES...

1. IF YOU ARE BEING ASKED TO EVACUATE A COASTAL LOCATION BY STATE AND LOCAL OFFICIALS, PLEASE DO SO.

2. IF YOU ARE RELUCTANT TO EVACUATE, AND YOU KNOW SOMEONE WHO RODE OUT THE `62 STORM ON THE BARRIER ISLANDS, ASK THEM IF THEY COULD DO IT AGAIN.

3. IF YOU ARE RELUCTANT, THINK ABOUT YOUR LOVED ONES, THINK ABOUT THE EMERGENCY RESPONDERS WHO WILL BE UNABLE TO REACH YOU WHEN YOU MAKE THE PANICKED PHONE CALL TO BE RESCUED, THINK ABOUT THE RESCUE/RECOVERY TEAMS WHO WILL RESCUE YOU IF YOU ARE INJURED OR RECOVER YOUR REMAINS IF YOU DO NOT SURVIVE. 

4. SANDY IS AN EXTREMELY DANGEROUS STORM. THERE WILL BE MAJOR PROPERTY DAMAGE, INJURIES ARE PROBABLY UNAVOIDABLE, BUT THE GOAL IS ZERO FATALITIES.

5. IF YOU THINK THE STORM IS OVER-HYPED AND EXAGGERATED, PLEASE ERR ON THE SIDE OF CAUTION. WE WISH EVERYONE IN HARMS WAY ALL THE BEST. STAY SAFE!

At the time, I noted:

Even if you don’t want to move for yourself, think of what will happen if you call 911 and they can’t help you. Think fo the risk to the recovery teams who will have to find you and rescue you. Or, think of how difficult it will be for them to recover your remains. That is morbid thought.

The long-and-short of it: if you don’t evacuate, you’re on your own.

Later, Governor Christie said people who refused to evacuate were “stupid and selfish.”

A few weeks later, we know how it turned out for those who refused to evacuate. On Staten Island, many people died, including 8 fatalities in the Midland Beach section (not too far from where I went to High School).

The Times has a lengthy piece about Staten Island, and the residents who did not evacuate. This line really stuck out at me:

Like most of the neighborhood’s residents, the victims ignored numerous orders to evacuate, a decision that underscores an independent streak that runs deep on Staten Island.

“I tried very hard,” Ms. Contrubis said through sobs at her brother’s funeral on Monday. “Before the storm I called him up and said, ‘Gene, the storm, it looks bad!’ And he said, ‘Everybody’s staying; nobody’s leaving.’ He just told me: ‘I’m not going to leave. I’m not going to leave.’ ”

I have family members who refused to evacuate. My mom pleaded with her sister, who lives in Seagate–a place that was totally destroyed–but she refused. Fortunately, my aunt survived the storm, though houses one block away were washed into the sea.

I don’t know that I understand the mentality of not evacuating. In my mind, survival and self-preservation is the first order of magnitude.  Perhaps because I have never owned a house, I cannot relate, but a house is just a house. Or to put it more pragmatically, how does staying behind improve the situation? How can one person prevent a house from being destroyed by a superstorm? Once the storm hits, it is too late to move out important belongings or cherished keep-sakes. Perhaps a person could help bail out water in the basement, but if water is flooding in that quickly, you probably should not be down there (at least one person in Staten Island died after getting stuck in a basement).

I remember having similar feelings on the eve of Katrina, when residents of New Orleans refused to evacuate. Other residents were confident that they could ride out the storm in the Superdome.

I know there are some people who are not able to evacuate–due to health, financial, or other reasons. I am not commenting on those people. My comment is limited to those who have the means to evacuate, but knowingly choose not to.

And, to answer the question I initially posed, apparently failing to evacuate is a crime in New York City.

Linda Gibbs, the deputy mayor for health and human services, said the city works with nonprofit groups to coordinate the evacuation of homebound older residents. But if people are not in facilities like hospitals, she said, getting them to evacuate can be challenging.

“If a person does not want to leave their own home, we cannot force them,” she said.

In the end, only about half of the residents in Zone A around the city evacuated, officials estimated. In Midland Beach, residents said they believed that an even smaller percentage left their neighborhood.

Refusal to obey a mandatory evacuation order is a misdemeanor, punishable by up to 90 days in jail. Yet the authorities rarely make arrests in such cases.

Officials now say they plan to conduct a thorough review of the Hurricane Sandy evacuation.

“We are going to look at people who left and people who didn’t, and we’re going to talk to them about why,” Mr. Holloway said.

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?

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.”

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.

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.

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.

REBUTTAL ARGUMENT OF BERT W. REIN ON BEHALF OF THE PETITIONER

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!