Weekly Roundup, February 5, 2016

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ACSblog recapped the two death penalty cases the Court has decided so far this term: Hurst v. Florida and Kansas v. Carr/Kansas v. Gleason. “What do these two different results in Hurst and Carr mean for the two death penalty cases currently pending before the Supreme Court?” asks writer Jessica Pezley. “The future of the death penalty at the Supreme Court is anything but certain.”

With Oyez founder Jerry Goldman set to retire this spring, The National Law Journal reports on the future of this  “widely used resource for the audio of U.S. Supreme Court oral arguments and other information about the court.”

Justice Sotomayer’s return home to participate in an Evening of Conversation at the Bronx Defenders was covered by the New Yorker.

On Wednesday, Chief Justice Roberts said that “partisan extremism is damaging the public’s perception of the role of the Supreme Court” as it forces Justices to “play” rather than referee political process. Coverage by The Washington Post.

In the New York Times, Linda Greenhouse wrote about the forthcoming United States v. Texas, “a case that should have been tossed out of Federal District Court” but now has its stakes “heightened enormously.” Further coverage from Constitution Daily.

Legal historian David Garrow wrote an op-ed in which he expressed concern about the judges—including Supreme Court Justices—getting too old to do their jobs.  The federal judiciary “is simply too important to leave in the hands of old fogeys,” he warns.

Weekly Roundup, January 29, 2016

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Here on ISCOTUS, Christopher Schmidt surveyed the legal challenge to President Obama`s immigration reform, which the Court will hear this spring.

Justice Alito is “fine with the idea of judges being perfectly boring in public” writes Mark Walsh in an ABAJournal story on the Justice’s first decade on the High Court. Yet, Walsh notes, even this happily boring judge knows how to work an audience with “his understated sense of humor and his modesty.”

On Monday, the Court announced orders from its January 22 Conference.  The Court, noted The Economist, shied away from reviewing cases dealing with abortion or the death penalty: “It seems that the nine may have, for one reason or another, drawn themselves a line they’re not willing to cross. The orders of January 25 may be a sign they feel a tad skittish about extending their hand still further into America’s most contentious disputes.”  Further coverage on Monday’s orders can be found at SCOTUSblog.

An article on Crimmigration postulates that the Supreme Court’s recent decision in Mathis v. United States will significantly impact anyone “facing removal from the United States based on a criminal conviction.”

And with the presidential race in full flight, Supreme Court appointments remain a popular discussion topic. The Patriot Post considers the Court’s current lineup and the potential impact of the next justice.  And by the way, Obama has made clear that that next justice will not be him.

 

Obama’s Immigration Program and the Supreme Court

The Supreme Court agreed last week to review a legal challenge to President Obama’s plans to use his executive power to revamp immigration policy, and since then commentators have been weighing in with explanations and prognostications.  Here is a survey of where the issue now stands.

The case of United States v. Texas involves a challenge to a program President Obama announced in late 2014. Citing Congress’s inability to reform a broken immigration system, Obama declared that he would suspend deportation actions against millions of undocumented immigrants and allow them to legally work in the country.  The program would apply to approximately five million illegal immigrants who are the parents of citizens or of lawful permanent residents.

The program has never gone into effect. Twenty-six states immediately challenged it in court, and the plan was put on hold pending the outcome of the litigation.  The state challengers won the first two rounds of the legal battle, first in a federal district court in Texas, and then in the 5th Circuit Court of Appeals, which decided against the Administration in a 2-1 ruling.

The states challenging the presidential action raise several claims.  They argue that the President’s program violates the procedural requirements of the Administrative Procedure Act, which requires a notice and response period prior to the promulgation of new executive rules.  (This was the primary ground on which the district court ruled against the Administration.)  The states also argue that the President’s program violates the requirements of federal immigration law.  (This was the ground on which the federal appeals court ruled against the administration.)

In response, the Obama Administration’s lawyers counter not only that the President has statutory authority to implement the program, but that the challengers should not even be in court, because they lack the requisite “standing” to litigate the issue in federal court.  The states suffer no injury because of the policy, Administration lawyers argue, and therefore they cannot turn to the courts for relief.  (The states argue that since the program would require additional state expenditures, such as the issuance of driver’s licenses for undocumented immigrants, the program does in fact “injure” them.)

The Supreme Court will consider all these questions.  But the Justices threw the litigants a curveball when they accepted the case for review: they asked the litigants to address a question they and the lower-court judges who had ruling on the case had largely avoided thus far.  This was not some narrow, technical question, which the Justices on occasion insist on discussing.  To the contrary, this was a sweeping constitutional question—one that many constitutional lawyers assumed was “non-justiciable,” meaning it’s the kind of constitutional question the courts simply don’t decide. (For a brief discussion on this issue, see here.)  The question was whether in declining to deport immigrants whose presence in the United States violates federal law Obama violates his obligation, under Article II of the Constitution, to “take care” that the laws of the United States are “faithfully executed.”  

The stakes of the case are monumental.  Not only could the decision affect millions of undocumented immigrants, but it “could redefine the balance of power between Congress and the president,” according to Cornell Law Professor Stephen Yale-Loeher.

So now we’re all scrambling to get up to speed on the Take Care Clause.  A good start on this issue can be found on the Heritage Foundation website, which offers a useful summary of the Take Care clause written by UVA law professor Sai Prakash; it includes a survey of its limited litigation history. Garrett Epps weighed in on the Court’s added constitutional question in The Atlantic.  The Washington Post ran a story with a survey of the history behind the clause and scholarly interpretations of its meaning.  Also helpful is a recent post on Jurist by Professor Glenn Smith.

A sampling of expressions of support for the Administration’s position:

  • The New York Times editorial board writes in a January 19 editorial: “The states should never have been allowed standing to sue in the first place, and their substantive claims are groundless…. Mr. Obama is wholly within his authority to make wise use of limited enforcement resources. The Supreme Court has already recognized this fact; now it needs to reiterate it.”
  • The Los Angeles Times argues that “the court should act quickly to blow away the smoke and affirm the president’s authority.”
  • In the Washington Post, Ilya Somin explains why the President’s actions are “systematic, transparent exercises of presidential authority.”

And critics of the Administration’s position:

  • Carrie Severino of the Judicial Crisis Network tells CNN that “the fact that the Court added the constitutional question means that some justices recognized that this is not a run of the mill act of prosecutorial discretion, but a novel and controversial power grab.”
  • “For the past seven years, Obama has treated the take care clause as a mild suggestion,” writes conservative commentator George Will.
  • At the National Review, Josh Blackman hopes that “the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers.”

Weekly Roundup, January 22, 2016

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The biggest news of the week: the Court announced on Tuesday that it would review a challenge to Obama’s deferred-action policy for undocumented immigrants. The Court’s move—which was widely expected—generated commentary from NPR, The Wall Street Journal, The Economist, The Atlantic, and The New Republic, among many others.

The week of oral arguments in the Supreme Court began with a strange one.  In Heffernan v. City of Paterson the Court considered whether a police officer who had made no effort to exercise his First Amendment right to free expression would nonetheless receive its protections when he was demoted because his bosses wrongly thought he spoke out against them. The argument received coverage from The Washington Post, NPR, and Education Week. There was also further commentary from The Economist and National Review.

Buzzfeed reported on Justice Breyer’s recent call to reconsider the constitutionality of the death penalty. According to Breyer, inmate Christopher Brooks’ request to halt his execution “underscores the need to reconsider the validity of capital punishment under the Eighth Amendment.”

On Wednesday, in Kansas v. Carr and Kansas v. Gleason, the Supreme Court ruled against three inmates who “committed acts of ‘almost inconceivable cruelty and depravity’.” Coverage from the New York Times, BloombergView, and NPR.

The Atlantic reported on an algorithm designed to determine the authorship of the Court’s unsigned opinions. Some of the justices’ tells: the Chief Justice likes to start sentences with “here” and end them with “the first place”; one of Justice Breyer favored phrases is “in respect to”; and Justice Scalia tends to start sentences with “of course” and writes “utterly” a lot.

The Week Ahead at the Supreme Court

The Supreme Court has four oral arguments scheduled this week. On Tuesday, the Court hears Heffernan v. City of Paterson, a First Amendment case regarding a police officer who was demoted based on his perceived political affiliation. Officer Heffernan was demoted because his superiors believed he was supporting the incumbent police chief’s opponent in an upcoming election. But they were wrong. Can Officer Heffernan claim his First Amendment rights were violated when he had not sought to exercise his free speech rights, but his superiors thought he had? This decision could have an effect on public employees’ job security, NorthJersey.com reports. Howard M. Wasserman offers a preview of the case at SCOTUSblog.

The other argument the Court hears on Tuesday is Americold Realty Trust v. ConAgra Foods, Inc. This case involves the issue of whether there is “diversity” between litigants, when one litigant is a trust, so that a case can be moved from state to federal court. It raises some very lawyerly questions. How should a court determine which state a trust is a citizen of? Should a court look only to the citizenship of the trustees, or can it also consider the citizenship of the trust’s beneficiaries for purposes of diversity jurisdiction? This problem “regularly pops up in litigation,” Law 360 reports, and the lower courts have been divided on it.

On Wednesday, the Court will hear oral arguments in two cases involving land disputes and federal authority. In Sturgeon v. Masica the Court will consider whether the Alaska National Interest Lands Conservation Act limits National Park Service control over certain disputed lands. This case turns on whether non-federal Alaska land is subject to federal regulations. Congress intended for some regulations to have “general applicability,” like the Clean Air Act or the Clean Water Act, explains Law 360. Here, the Court will decide if federal land regulations have a similar general applicability.

Also on Wednesday is Nebraska v. Parker. In Nebraska, the Court will determine whether tribes retain control over land they sold over a hundred years ago. Does the long-ago sale of tribal lands to non-Indian settlers diminish the original boundaries of the Omaha Indian Reservation? If not, then tribes can exercise their taxing authority within the boundaries of the sold land. Lyle Denniston previews the case at SCOTUSblog. Forbes.com asks whether this case may be the “tipping point for the next phase of Indian policy for the human rights era.”

In other Supreme Court news we’ll be following this week, the Court remains a popular topic in the presidential primary contests. The next President is likely to have the opportunity to appoint at least one justice. Check out Constitution Daily for a report on what the candidates have said on the Supreme Court.

Also, people are talking about a potential future Supreme Court opinion striking down the death penalty.  This possibility gained newfound attention in the wake of Justice Breyer’s dissent in Glossip v. Gross last June. The New York Times recently published an editorial under the headline “The Death Penalty Endgame,” noting a petition currently before the Supreme Court in a Pennsylvania case that directly challenges the constitutionality of the death penalty.

Weekly Roundup, January 15, 2016

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The big decision of the week came on Tuesday, when the Court struck down Florida’s death penalty procedure because it gives too much power to judges, rather than juries. Reports from USA Today and NPR. Quoted in the Orlando Sentinel, Orange-Osceola State Attorney Jeff Ashton believed the decision wouldn’t greatly impact local capital cases.

Monday’s oral arguments in Friedrichs v. California Teachers Association garnered commentary from Huffington Post, Forbes, The Washington Post, and The Economist.

On Wednesday, the Court heard oral arguments in Puerto Rico v. Sanchez Valle, regarding whether Puerto Rico and the U.S. government are separate sovereigns for purposes of the 5th Amendment’s Double Jeopardy Clause. Coverage from The New York Times, The Wall Street Journal, Huffington Post, and Slate.

Three upcoming cases concern Blood Alcohol Content (BAC) tests: Bernard v. Minnesota, Birchfield v. North Dakota, and Beylund v. Levi. Lisa Soronen wrote for the NCSL Blog, “The Supreme Court will decide whether state statutes criminalizing a person’s refusal to take a chemical BAC test where police have not obtained a warrant are unconstitutional.”

The Atlantic examines the impact the next President’s Supreme Court appointments could have on campaign finance reform.

Weekly Roundup, January 8, 2016

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In an op-ed in the Boston Globe, Hillary Clinton described the upcoming presidential election as a  “make-or-break moment—for the court and our country” since the next President will likely have the opportunity to appoint several Supreme Court justices. “There’s nothing surprising,” in Clinton’s op-ed, tweeted Ian Millhiser, “but it’s a big deal that she wrote it.”

Anticipating next week’s oral arguments for Friedrichs v. California Teachers Association, commentary abounds. Coverage comes from Education Week, The Economist, The Wall Street Journal, and the Chicago Tribune, among others.

On Tuesday, over 100 women lawyers filed a brief supporting challenges to the Texas law that would result in the closing of many of the state’s abortion clinics. Richard Wolf reported for USA Today.

Chief Justice Roberts released a year end report focusing on recent changes to Federal Rules of Civil Procedure. Coverage and commentary on the reports come from The Wall Street Journal and the Civil Procedure and Federal Courts Blog.

Linda Hirshman, author a recent book on Justices O’Connor and Ginsburg, wrote an opinion piece in The Washington Post discussing the possibility of a nomination deadlock leaving the Supreme Court with eight justices.  Noting the rule that any tie vote on the Supreme Court means that the lower court’s holding controls, Hirschman concludes: “Thanks to a wealth of recent Democratic appointments on the lower courts, letting the Supreme Court go down to eight justices would favor liberals.”

Weekly Roundup, December 24, 2015

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In The National Law Journal, Mike Sacks reviewed  2015’s top quotes from the Supreme Court.

The oral arguments for Fisher v. University of Texas at Austin have continued to inspire response. Reactions from The New York Times, The Corner, ACS Blog, and The National Journal.

Vox featured a piece on rapper Killer Mike, who “is defending rap as an art form to the Supreme Court.” Additional reporting from The New York Times.

The Human Rights at Home Blog predicts that a recent ruling by a Massachusetts state judge that a Catholic high school discriminated against a gay man married to a man will eventually get to the Supreme Court.

David Savage has an article on conservative legal strategist Edward Blum’s remarkable run at the Supreme Court.

The Supreme Court February argument calendar is available online.

That’s it for 2015! We’ll see you in the new year.

Weekly Roundup, December 18, 2015

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The Economist discussed the Supreme Court’s order to halt an Alabama Supreme Court decision that would strip a woman of parenting rights to children she was raising with her same-sex partner prior to the couple’s separation.

Last week’s twitter chat Between Bloomberg Law, Prof. Nahmod, Oyez and ISCOTUS is now available to read on Storify.

Neighboring states recently sued Colorado, claiming the state’s legalization of marijuana has caused the states to “have suffered direct and significant harm.” On Wednesday, “The Obama administration . . . urged the U.S. Supreme Court not to referee the dispute[.]” The National Law Journal provided coverage.

ACSblog featured a guest post by Erwin Chemerinsky revisiting Bush v. Gore. The ruling “is a powerful reminder that Supreme Court decisions are a product of who is on the bench and their ideology and views . . . [R]arely has it been as obvious–or as important–as in Bush v. Gore.”

On Monday, the Court released its opinion in DIRECTV, Inc. v. Imburgia. “The U.S. Supreme Court once again upheld consumer arbitration contracts against attacks by class-action lawyers,” reported Forbes. JURIST, Dubitante and Liberty Blog provided commentary and coverage.

NPR featured a “best of” from their interview with Justice Breyer on the 13th.

On Monday, we featured a guest post by Vinay Harpalani on Fisher v. University of Texas at Austin.

The Fishing Expedition Continues: Will there be a Fisher III?

Guest post by Vinay Harpalani, Associate Professor at Savannah Law School

On Wednesday, December 9, for the second time, the U.S. Supreme Court heard oral arguments in Fisher v. University of Texas at Austin. The question in Fisher II is the exactly the same it was in Fisher I: does the University of Texas at Austin (UT) need to use a race-conscious admissions policy to achieve the educational benefits of diversity, in addition to Texas’s facially race neutral Top Ten Percent plan which automatically admits 80 percent of UT’s incoming class? Previously, I contended that the entire Fisher case is a fishing expedition—an unwarranted attack on race-conscious admissions by Abigail Fisher, and a fruitless effort by the Court to address matters that are insoluble, and that do not “even need[] to be resolved to decide the case.”  Observing the Fisher II oral arguments only reinforced my view.  

The Justices did not provide any clarity on the meaning of “critical mass”—a prominent issue in the Fisher I arguments that is still unresolved.  There was relatively little discussion of legal concepts related to race-conscious university admissions, as both the advocates and the Justices focused largely on factual minutiae about the re-adoption and implementation of admissions plans by the University of Texas at Austin (UT).  One had to be quite familiar with the details of the case to understand the finer points raised during the oral arguments, which did not suggest any major alteration to the framework for constitutionality of race-conscious admissions laid out in the Court’s ruling in Grutter v. Bollinger (2003).

Consequently, public and media attention focused mainly on inflammatory remarks by Justice Antonin Scalia.  Justice Scalia drew upon the “mismatch” theory”—the broad and controversial contention that Black students are largely unprepared to succeed at elite universities.  Other scholars have critiqued “mismatch” theory from a variety of perspectives, and I will not engage its merits here.  My only comment is that “mismatch” is irrelevant to the constitutional debate on race-conscious admissions.  The Supreme Court is not an admissions committee: universities possess much greater expertise than courts on determining the academic qualifications of students.  In spite of Justice Scalia’s rhetoric, the Supreme Court itself has espoused this position, from Sweezy v. New Hampshire (1957) (Justice Felix Frankfurter, concurring and noting that determination of “who may be admitted to study” is one of the “four essential freedoms” of a university) to Regents of the University of California v. Bakke (1978) (Justice Lewis Powell citing Sweezy in his concurrence) to Grutter (which relied on Justices Frankfurter and Powell’s aforementioned reasoning).  

Besides Justice Scalia here and Justice Clarence Thomas’s concurrence in Fisher I, no Justice has entertained “mismatch” theory, as it does not raise issues amenable to judicial review.  Courts can ascertain whether a university’s use of race is constitutional—that is the crux of Fisher and related litigation—but they should defer to a university’s judgment on whether students can succeed academically at the university.  If any discussion of “mismatch” is warranted at all, it should occur with university administrators, not with judges.  

Rather than engaging these distractions further, I will sift through the nuances of the Fisher II oral argument and address how the Court might rule.  Based on the oral arguments, I see five different possibilities, with different implications, for the eventual ruling in Fisher II. The first two of these—the broadest potential holdings on either side—are unlikely, but they still merit discussion. The Justices will probably not strike down race-conscious admissions policies altogether, nor are they apt to affirm the Fifth Circuit and uphold UT’s race-conscious admissions policy, which supplements the Top Ten Percent plan.  Although five current Justices are hostile to Grutter, nothing in the oral argument suggested that the Justices will now strike down the Grutter framework for race-conscious admissions.  They agreed to punt on the issue in Fisher I, because Plaintiff Abigail Fisher did not challenge Grutter itself—and UT counsel Gregory Garre, with an assist from Justice Stephen Breyer, reminded the Court that Grutter’s viability is not at issue in this case.  Chief Justice John Roberts did ask how UT would determine when it no longer needed race-conscious admissions policies—an issue that has been of concern to the Court in the Fisher litigation.  

Both Mr. Garre and Solicitor General Donald Verrilli, arguing for the United States as amicus curiae in support of UT, provided a variety of criteria, ranging from demographics to student surveys of campus climate, that could provide an endpoint.  In spite of Mr. Garre’s and General Verrilli’s contentions to the contrary, it is within the realm of possibility that the Court will hold Grutter to be unworkable because of the indeterminacy of the endpoint.  

However, when mentioning a time limit on race-conscious admissions policies, Chief Justice Roberts spoke only in future tense, referring to Grutter’s tenuous 25-year aspiration to end such policies.  There are still a dozen years left on that clock, and nothing else has really changed since Fisher I.  It seems unlikely then, that the Court will now suddenly decide to reverse its Grutter and Fisher I precedents.

It is also improbable that the Court will unequivocally uphold UT’s race-conscious policy and stop this perpetual fishing expedition.  Of course, Mr. Garre and General Verrilli did their best to try and convince the Justices to do so.  Mr. Garre reminded the Justices that both the district court and the Fifth Circuit (twice) upheld UT’s policy, and that the Texas legislature also found that a race-conscious policy was necessary to supplement that Top Ten Percent plan.  However, the Justices knew this when they granted Plaintiff Abigail Fisher’s cert petition, and they wanted to hear the case anyway.  

General Verrilli went into even greater detail in his attempt to save UT’s race-conscious policy.  He argued that UT’s plan is actually constitutionally superior to the University of Michigan Law School plan upheld in Grutter, because it does not contain the “potentially troublesome” features that Justice Anthony Kennedy identified in his Grutter dissent.  General Verrilli noted that UT’s policy used race much more modestly than the Michigan Law School plan; that the percentages of applicants by race did not mirror the percentage accepted by race; that the numbers of minority admits fluctuated by year (thus mitigating fears of racial quotas); that UT did not wait until the end of the admissions cycle to admit most Black and Hispanic students; and that UT admissions officers did not monitor numbers of applicants throughout the process in a manner that would suggest racial quotas or a determinative role for race.  

All of these fine points suggest that UT’s policy is constitutionally compatible not only with the Grutter majority, but also specifically with Justice Kennedy’s Grutter dissent.  However, Justice Kennedy has never voted to uphold a race-conscious policy that uses individual racial classifications.  If ever there is a chance he would do so, UT’s policy is it.  But that probably will not happen.

More likely, the Court will strike down UT’s race-conscious policy on narrow grounds, by a 5-3 vote (Justices Kennedy, Alito, Thomas, Scalia, and Chief Justice Roberts in the majority, with Justices Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor in dissent; Justice Elena Kagan recused herself from the case, due to her former involvement when she was the U.S. Solicitor General).  From the oral argument, I saw at least two different bases for this to happen.  One path could come from Plaintiff’s counsel Bert Rein’s argument that UT’s race-conscious policy, even if viewed in isolation from the Top Ten Percent plan, does not meet the requirements of Grutter and of Justice Lewis Powell’s concurrence in Bakke (which became the basis for Grutter).  In one of the few novel legal arguments raised on Wednesday, Mr. Rein made a very nuanced distinction between UT’s admissions policy and the prior race-conscious plans that the Court has endorsed.  

While the Grutter and Bakke plans considered race holistically as part of an applicant’s entire profile, UT’s policy considers race only as part of a Personal Achievement Index (PAI)—which includes various non-academic factors, including hardships faced by the applicant, and scores on essays.  This PAI is later merged with the applicant’s academic qualifications: class rank and standardized test scores captured through an Academic Index (AI).  Mr. Rein argued essentially that UT’s policy is “not truly holistic” because race is not considered alongside the academic qualifications and the entirety of the applicant’s profile.  This is a rather trivial distinction, especially given that lower courts focused not on whether UT’s policy was Grutter-like in nature (all parties seemed to agree that it was), but rather on whether UT needed to use a Grutter-like plan to attain sufficient benefits of diversity.  Nevertheless, this ruling would give the Court a route to both rule against UT and provide guidance on the requirements for a constitutional, holistic race-conscious admissions policy.  

The other possibility here is that the Court rules that UT did not meet the burden of strict scrutiny because it did not adequately demonstrate that it needs to use a race-conscious policy, in addition to the Top Ten Percent plan, to attain the educational benefits of diversity.  If it strikes down UT’s policy narrowly, the Court’s ruling itself will only have a direct and immediate impact on UT, not on all other universities.  Nevertheless, advocates would interpret the ruling in different ways, inviting more litigation against other universities for their use of race-conscious admissions policies.  Such lawsuits have already been filed against Harvard University and the University of North Carolina.  Universities may also pre-emptively curb or eliminate their race-conscious policies to avoid litigation. All of this would occur without any significant alteration of the basic Grutter framework.  

However, the Court also appears to be grappling with remand of the case to the district court.  This final possibility is the most surprising: essentially, the Court could once again vacate the Fifth Circuit’s ruling that UT’s race-conscious policy met strict scrutiny and send the case back to the district court for further fact-finding.  UT could then gather and present more evidence to defend the constitutionality of its policy.  Questions by Justice Anthony Kennedy, whose vote will be outcome determinative here, and by Justice Samuel Alito, focused on specific facts about UT’s admissions plan and whether its features these met the requirements of Grutter and Fisher I.  Many of the answers to these questions were not in the factual record of the case, but these answers might be discerned if UT could introduce more evidence about its admissions policy.

Justice Alito was most concerned about whether minority students admitted via the Top Ten Percent plan alone bring all the benefits of diversity and other qualities sought by UT.  He accused UT of racial stereotyping, via assumptions about the backgrounds of Top Ten Percent admits.  Justice Alito also asked Mr. Garre for specific evidence that students admitted via the race-conscious policy make unique contributions to diversity.  Justice Kennedy asked both Mr. Garre and Mr. Rein about the utility of remanding the case back to the district court for more fact-finding.  Mr. Rein vehemently argued that UT knew the strict scrutiny standard beforehand, and that the University had ample opportunity to gather and present sufficient evidence to prove its need to use race.  And remanding the case without a clearly articulated standard for demonstrating such need seems like another futile endeavor.

Nevertheless, Justice Kennedy still seemed to wonder if more facts about both Top Ten Percent and non-Top Ten Percent admits may elucidate whether use of race was necessary.  He might reach a compromise with some of the other Justices, similar to the ruling in Fisher I, and agree to punt the case again—this time all the way back to the district court.  While I had not previously considered remand to the district court as a serious prospect, Justices Kennedy and Alito’s questions suggest that it could happen. The open question that comes out of the Fisher II oral arguments now is whether there will now be a Fisher III—not only extending the fishing expedition, but doing so in the same sea.  

Follow Professor Harpalani on Twitter: @VinayHarpalani.