Today’s oral argument in Fisher v. University of Texas largely bears out what most observers expected. As Amy Howe explained on SCOTUSblog, the five conservative justices seem inclined to strike down the University of Texas’ affirmative action program, though not to completely overrule Grutter v. Bollinger, which allows the use of racial preferences to promote educational “diversity.” As I feared, it seems very possible that Justice Anthony Kennedy will conclude that the University of Texas cannot use explicit racial preferences because it has already achieved a “critical mass” of minorities by virtue of Texas’ Ten Percent Plan, which requires the university to admit anyone who is in the top ten percent of their high school class. This would be a very unfortunate outcome for reasons I discussed here. However, some of the conservative justices seemed skeptical of the very notion of a “critical mass,” as is evident from the following exchange with University of Texas lawyer Gregory Garre:
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...
Later in the oral argument, Chief Justice Roberts complained that it was impossible to tell whether an affirmative program is narrowly tailored to the goal of promoting educationally beneficial racial diversity if that goal depends on achieving a “critical mass” and the University “won’t tell me what the critical mass is.”
Solicitor General Donald Verrilli (who appeared in defense of the program) even seemed to disavow the whole idea of “critical mass” in an exchange with Justice Scalia, claiming that the concept was overblown and had unfortunately taken on a “life of its own in a way that’s not helpful.”
In fairness, to Garre and Verrilli, Grutter created a difficult dilemma for them by, on the one hand, endorsing the idea of “critical mass” but on the other forbidding schools to pursue any numerical goals. But, as Justice Scalia points out, “mass assumes numbers.” The “critical mass” idea also has other flaws, such as the fact that it could justify racial and ethnic preferences for a nearly infinite range of groups, including Russians, Swedes, and sometimes even white males.
It remains to be seen whether key swing voter Justice Kennedy is also willing to dump the “critical mass” idea, and if so what he would replace it with.
A final interesting aspect of the oral argument is that some of the liberal justices seem interested in dismissing the case because the plaintiff, Abigail Fisher, lacks standing due to the fact that she has already graduated from another university and might not have gotten into the University of Texas even if it did not have any racial preferences. The conservative justices, for their part, were hostile to this standing argument.
This continues what I have previously described as a breakdown of traditional ideological positions on standing issues. It used to be that conservative jurists tended to favor restrictive standing rules, while liberal ones took the opposite view. But both sides seem to be changing where they stand on standing:
Traditionally, conservative scholars and judges have advocated narrow views of constitutional “standing”: the level of “interest” litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view....
This ideological division has been turned on its head in the current gay marriage and health care litigation. In the former, liberal litigants and interest groups have argued that the proponents of California’s anti-gay marriage Proposition 8 lack standing to appeal the district court ruling striking it down. For their part, conservatives have claimed that they do have “standing,” applying a broad definition of what counts as “material injury...” In the health care case, district judge Henry Hudson (a George W. Bush appointee) has ruled that the state of Virginia has standing to challenge the Obama bill’s “individual mandate” even though the mandate actually applies only to individuals and not state government. The liberal Obama administration and many liberal commentators such as Jack Balkin decried this ruling and argued that Virginia doesn’t have standing. This, despite the fact that Virginia’s standing could be defended under the broad interpretation of state government standing approved by the Supreme Court in Massachusetts v. EPA, the global warming case (much to the delight of most liberals).
Does this mean that liberals and conservatives are about to switch sides on standing? Possibly. But it is more likely that views on standing will no longer closely track ideological divisions. Nothing about conservative ideology as such necessarily requires narrow standing rules, and nothing about liberal ideology necessarily requires broad ones....
Over time, therefore, neither group is likely to advance a consistent position on the issue. Standing arguments will increasingly become a tactical gambit used whenever convenient, rather than a matter of principle.
The Fisher case is further proof of my thesis. If, as expected, the Court concludes that Fisher does have standing, that would be a good result. For reasons I discussed in this post, restrictive standing requirements are not mandated by the Constitution.