Is there anything more American than an argument at the Supreme Court about affirmative action?

It combines so many things unique to our country: an obsession with elite institutions (including both the Supreme Court and the University of Texas, one of our best public schools); passionate arguments about our nation’s long and complicated relationship with race; the relentless striving for success and attainment familiar to so many of us who want to be a named plaintiff in a Supreme Court case (or get into college, depending); and, of course, protests outside a government building.

My fellow lawyers, Alexis de Tocqueville was right — “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Surely this form of American exceptionalism should be the most celebrated by the noble readers of Above the Law.

If there is any advantage to the way some in our nation attempt to affect the presence of minorities in elite colleges — through litigation rather than, say, appropriations — it’s that it leads to an awesome spectacle at One First Street NE.

And to that spectacle we now turn….

Today’s affirmative action case arises in Fisher v. University of Texas. The University of Texas is required by the Texas state legislature to admit the top 10 percent of each high school graduating class in Texas to UT – Austin. This doesn’t fill all the spots at the school. The rest are filled by doing a “whole person” assessment, that considers, among other factors, race.

In Grutter v. Bollinger — the Michigan affirmative action case — the Supreme Court said that it’s okay to consider race if you’re doing it make sure the school has a “critical mass” of minorities.

The Court spent the bulk of today’s time talking about what counts as a critical mass. When does the school not have a critical mass so that looking at race is okay? When does the school already have a critical mass, such that looking at race is no longer acceptable?

Everyone agrees that critical mass cannot just be a number, or a percentage. “There can be no quotas,” is the first rule of Affirmative Action in America, just like, “You cannot question ethanol subsidies and win the Iowa caucuses,” is the first rule of our presidential politics.

If critical mass doesn’t mean numbers, what does it mean?

Texas commissioned a survey of students, to see if they feel racially isolated while on campus. The survey suggested that a critical mass has yet to arrive in Austin.

The Chief Justice is not sympathetic to this approach — when told that a group of 18-22 year-olds were asked how they felt, the Chief responded, “That’s the basis of our constitutional analysis?”

Do you look at demographics? As Justice Alito asked, only two percent of New Mexico’s population is African American. If 12 percent of Texas is African American, is the standard for a critical mass different at UT than at New Mexico State?

No one seems to like that answer.

Yet, as the Chief Justice noted — ever moving toward the reasonable, apolitical, center — “My job is to look at our past precedents and determine whether your race-based admissions program is narrowly tailored to reach a critical mass.” How does he do that without knowing what a critical mass is?

Justice Breyer worried how to make a test for critical mass that district court judges can apply.

Or, as Justice Sotomayor seemed to worry, how does a school know whether its admissions program passes constitutional muster?

Saying “trust the schools” does not seem to be the right answer.

Does critical mass include all minorities, or just certain minorities? The justices were told that if you count Asians, 40 percent of the students at the University of Texas are minorities.

Justice Alito was concerned — I suspect facetiously — with whether different subsets of Asians have different critical mass needs. Do Vietnamese students require a critical mass of other Vietnamese students, or are they cool hanging out with Filipinos? (Lat tells me some of his best friends are Vietnamese.)

Maybe, in light of recent world events, Japanese students shouldn’t be considered in the same critical mass as Chinese students?

Justice Scalia wondered if the school is trying to make sure individual classes have a critical mass, or the school at large. If you want to make people feel comfortable, perhaps the school should look on a class-by-class basis? Maybe Econ 201 isn’t sufficiently integrated?

Few suspected these questions were motivated by a real concern about racially-isolated budding economists.

But wait — it’s worse! The Chief Justice was concerned that maybe the whole idea of race is suspect. How does the school know if students are really Latino or Black, he asked? The answer — because the applicant checks a box.

“What if they’re only a quarter Latino?,” asked the Chief Justice.

The school still relies on self-reporting.

The Chief Justice pressed on — what if the student is only an eighth Latino?

The school still relies on self-reporting.

Many in the audience worried that there would be no stopping the Chief if he kept multiplying denominators by two. Happily, the Court moved on before a serious discussion of Elizabeth Warren’s Native American heritage came up.

Justice Scalia, near the end of the argument, proposed not using the term critical mass anymore, since “mass” suggests numbers, and numbers are exactly what you can’t use.

It was an odd moment. It seemed that everyone at the Court — all the lawyers, the justices, perhaps even the protestors outside — agreed that Grutter should not be overruled, but no one understood how to follow it.

Drugs and Immigration

There was, of course, another argument this morning. Tom Goldstein — SCOTUSblog founder and Supreme Court advocate extraordinaire — stepped up to the podium a little after 10:00 a.m. and announced, “Today’s undercard is an immigration case.” The case is Moncrieffe v. Holder.

And what an immigration case it is. If NORML is to be believed, everyone in America who is not a child of Mitt Romney has smoked marijuana in his or her youth.

Yet, if that person isn’t a citizen, a state court conviction for “social sharing” of marijuana with someone else (e.g., “intercepted”) can make the person automatically subject to deportation.

In this case, Georgia’s law doesn’t distinguish a social sharer from someone who is selling for cash. The petitioner shared 1.3 grams of marijuana — “For those fortunate enough not to have much experience with our drug laws,” Goldstein explained that it was less than the weight of a penny.

The Court considered whether immigration judges should have the authority to allow these folks to avoid deportation, or whether they should be automatically deportable as aggravated felons.

Look for both opinions in a few months.


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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