October 10, 2012

More high comedy at the High Court

More from the transcript of oral questions at the Supreme Court in the Fisher affirmative action case today:

 CHIEF JUSTICE ROBERTS: General Verrilli. 

[General Verrilli is the Obama Administration's Solicitor General]

... JUSTICE ALITO: Does the United States [i.e., the Obama Administration] agree 
with Mr. Garre that African American and Hispanic 
applicants from privileged backgrounds deserve a 

 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 
 The Top 10 Percent Plan certainly does 
produce some ethnic diversity. Significant numbers get 
in. The problem is the university can't control that 
diversity in the same way it can with respect to the 
25 percent of the class that is admitted through the 
holistic process.
 So my understanding of what the university 
here is looking to do, and what universities generally 
are looking to do in this circumstance, is not to grant 
a preference for privilege, but to make individualized 
decisions about applicants who will directly further the 
educational mission. For example, they will look for 
individuals who will play against racial stereotypes 
just by what they bring: 

[In other words, economically privileged blacks and Hispanics should also be personally given special legal privileges in order to undermine the stereotype of blacks and Hispanics as disprivileged. It's a tough job but somebody's gotta do it!]

The African American fencer; 
the Hispanic who has -- who has mastered classical 

[I love the General's pause before coming up with the example of the Hispanic who gets into UT despite presumably mediocre grades and test scores but "who has -- who has mastered classical Greek." His pause as he tries to come up with an example reminds me of Waugh's Scoop where novice foreign correspondent William Boot is shown into the office of newspaper magnate Lord Copper and gets some advice on covering wars in Africa:
There are two valuable rules for a special correspondent — Travel Light and Be Prepared. Have nothing which in a case of emergency you cannot carry in your own hands. But remember that the unexpected always happens. Little things we take for granted at home, like...” he looked about him, seeking a happy example; the room, though spacious, was almost devoid of furniture; his eyes rested on a bust of Lady Copper; that would not do; then, resourcefully, he said: “...like a coil of rope or a sheet of tin, may save your life in the wilds. I should take some cleft sticks with you. I remember Hitchcock — Sir Jocelyn Hitchcock, a man who used to work for me once; smart enough fellow in his way, but limited, very little historical backing — I remember him saying that in Africa he always sent his despatches in a cleft stick. It struck me as a very useful tip. Take plenty.]

They can also look for people who have a 
demonstrated track record of -­

JUSTICE ALITO: If you have two applicants 
who are absolutely the same in every respect: They both 
come from affluent backgrounds, well-educated parents. 
One falls within two of the groups that are given a 
preference, the other doesn't. It's a marginal case. 
It's the last -- the last position available in the 
class. Under the Texas plan, one gets in; one doesn't 
get in. Now, do you agree with that or not?


JUSTICE ALITO: Do you agree with -- do you 
agree that that is an incorrect statement of the facts, 
or do you agree that that's an incorrect understanding 
of the Equal Protection Clause?

 GENERAL VERRILLI: I think it's both. I 
think the -- there is no automatic preference in Texas. 
And I think this is right in the -- it says at page 398a 
of the Joint Appendix -- the -- they describe the 
process as saying, "An applicant's race is considered 
only to the extent that the applicant, viewed 
holistically, will contribute to the broader vision of 
diversity desired by the university."

 JUSTICE SCALIA: Yes, but -- but the 
hypothetical is that the two applicants are entirely the 
same in all other respects.

 GENERAL VERRILLI: Right. But the point -­

JUSTICE SCALIA: And if -- if the ability to 
give a racial preference means anything at all, it 
certainly has to mean that, in the -- in the 
hypothetical given -- given by Justice Alito, the 
minority student gets in and the other one doesn't.

Justice Scalia. What the -- Texas, I think, has made 
clear -- and I think this is a common feature of these 
kinds of holistic approaches -- that not everyone in an 
underrepresented group gets a preference, gets a plus 

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


 JUSTICE SCALIA: And what does the racial 
preference mean if it doesn't mean that in that 
situation the minority applicant wins and the other one 

 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.

 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. 

[C'mon, that's the best you can do, General? "More subtly"? What about "more ineffably"? "More transcendentally"? Lay it on thick, man! You have to get Kennedy's vote.]

CHIEF JUSTICE ROBERTS: It doesn't function 
more subtly in every case. We have findings by both 
courts below -- and I'm reading from the court of 
appeals opinion at Petitioner appendix page 33.
 "The district court found that race is 
indisputably a meaningful factor that can make a 
difference in the evaluation of a student's 
application." If it doesn't make a difference, then we 
have a clear case; they're using race in a way that 
doesn't make a difference. The supposition has to be 
that race is a determining factor.
 We've heard a lot about holistic and all 
that. That's fine. But unless it's a determining 
factor, in some cases they're using race when it doesn't 
serve the purpose at all. That can't be the situation.

 GENERAL VERRILLI: It can make a difference. 
It just doesn't invariably make a difference with 
respect to every minority applicant, and that's the 
key -­

CHIEF JUSTICE ROBERTS: You have to agree 
that it makes a difference in some cases.

 GENERAL VERRILLI: Yes, it does.


 GENERAL VERRILLI: But it doesn't 
necessarily make a difference in the situation that 
Justice Alito posited -­

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 

[In other words, we've been BSing Americans since Bakke in 1978 and we'd better not stop now, or embarrassing questions might be asked.]

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

[It's an organic factor! No, it's a supernatural factor! I've got it, it's a metaphysical factor!]

 Now, with respect to the implementation 
of -- and the narrow tailoring inquiry, with respect to 
the University's implementation of this -- of its 
compelling interest, I do think it's clear that, 
although the Petitioner says she's challenging 
implementation, that this plan meets every requirement 
of Grutter and addresses the concern of Justice Kennedy 
that you raised in dissent in Grutter. Whether Texas 
had to or not, it did address that concern.
 There's no quota. Everyone competes against 
everyone else. Race is not a mechanical automatic 
factor. It's an holistic individualized consideration. 

[Yeah, that's the ticket: It's a holistic factor! It's an holistic individualized consideration!"]

And because of the way the process is structured, they 
do not monitor the racial composition on an ongoing 

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.

[It's a contextual factor!]

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

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

[It's an in-the-mind-of-God factor.] 

CHIEF JUSTICE ROBERTS: To get back to what 
we're talking about

[Oooh, diss ...]

, you -- as I understand it, race by 
itself is taken into account, right? That's the only 
thing on the cover of the application; they take race 
into account.
 And the district court found -- and you're 
not challenging -- that race makes a difference in some 
cases, right?

 GENERAL VERRILLI: Yes. But the key, 
Mr. Chief Justice, is the way it makes a difference. 
And it makes a difference by casting the accomplishments 
of the individual applicant in a particular light, or 
the potential of an individual applicant in a particular 
 What -- what universities are looking for 
principally with respect to this individualized 
consideration is what is this individual going to 
contribute to our campus? And race can have a bearing 
on that because it can have a bearing on evaluating what 
they've accomplished, and it can have a bearing for the 
reasons I tried to identify earlier to Justice Alito on 
what they can bring to the table, what they can bring to 
that freshman seminar, what they can bring to the 
student government, what they can bring to the campus 
environment -­

JUSTICE BREYER: All right, sir. But it is 
the correct answer to Justice Alito's -- if there are 
ever two applicants where the GPA, the test -- the 
grades, the SA1, SA2, leadership, activities, awards, 
work experience, community service, family's economic 
status, school's socioeconomic status, family's 
responsibility, single-parent home, languages other than 
English spoken at home, and SAT score relative to 
school's average race, if you have a situation where 
those -- all those things were absolutely identical, 
than the person would be admitted on the bounds of race. 

GENERAL VERRILLI: Not necessarily.


[The audience gets the joke!]

... CHIEF JUSTICE ROBERTS: General, how -- what 
is your view on how we tell whether -- when the 
University has attained 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.

 CHIEF JUSTICE ROBERTS: Okay. I'm hearing a 
lot about what it's not. I'd like to know what it is 
because our responsibility is to decide whether this use 
of race is narrowly tailored to achieving, under this 
University's view, critical mass.

Mr. Chief Justice?


 I think -- I don't think that this is a 
situation in which the Court simply affords complete 
deference to the University's judgment that it hasn't 
yet achieved the level of diversity that it needs to 
accomplish its educational mission.

[Complete deference -- that's all were asking.]

 I think that the Court ought to -- has to 
make its own independent judgment. I think the way the 
Court would go about making that independent judgment is 
to look at the kind of information that the university 
considered. That could be information about the 
composition of the class. It could be information about 
classroom diversity. It could be information about 
retention and graduation rates. It could be information 
about -- that's specific to the university's context in 
history. Is it a university that has had a history of 
racial incidents and trouble or not? 

[If we haven't had any racial incidents, we can get you some quick. Our Ed School professors are very obliging when it comes to racial incidents. You want a noose? We can get you a noose, believe me. There are ways, Dude. You don't wanna know about it, believe me. Hell, we can get you a noose by 3 o'clock this afternoon.]

A series of 
 And then what the Court's got to do is 
satisfy itself that the University has substantiated its 
conclusion based on that -- based on the information 
it's considered, that it needs to consider race to 
further advance the educational goals that Grutter has 
identified as a compelling interest.
 And I will say, I do think, as the number of 
minority enrollees gets higher, the burden on the 
university to do that is going to get harder to meet. 
But I don't think -- I don't think there is a number, 
and I don't think it would be prudent for this Court to 
suggest that there is a number, because it would raise 
exactly the kind of problem that I -- that I think 
Justice Kennedy identified in the Grutter dissent of 
creating hydraulic pressure towards that number.

 JUSTICE SCALIA: We should probably stop 
calling it critical mass then, because mass, you know, 
assumes numbers, either in size or a certain weight.


 JUSTICE SCALIA: So we should stop calling 
it mass.


 JUSTICE SCALIA: Call it a cloud or 
something like that.



 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.

[In other words, nobody should think nuthin' about nuthin', the Supreme Court should just let the public universities do whatever they feel like. If you can't trust college administrators, who can you trust?]

[For the Supreme Court's questioning of the U. of Texas lawyer, which is also pretty amusing, click here.]

[It's hard not to be reminded once again of Theodore Dalrymple's insight:
“In my study of communist societies, I came to the conclusion that the purpose of communist propaganda was not to persuade or convince, not to inform, but to humiliate; and therefore, the less it corresponded to reality the better. ... I think if you examine political correctness, it has the same effect and is intended to.”]


Anonymous said...

What galls me is that even in Calif. let alone nationally, the majority is opposed to affirmative action, illegal immigration, gay marriage, for the death penalty, three strikes etc but they vote in politicians more liberal than them who govern against their will. Who can explain this? The liberals I know can only sputter when asked.

eah said...

The transcripts -- the parts I read, anyway (I did not bother to read all of it) -- just show that it's difficult to defend the indefensible.

However, I immediately recall one lawyer who managed it: Johnnie Cochran. It's too bad Johnnie's not around to argue UT's case. Now that would probably be funny.

Other than that prospect, I don't see much that's funny here.

Power Child said...

Hah, Steve you're hilarious.

International Jew said...

Garre and Verrilli are giving the justices the runaround. Isn't that an example of "contempt of court"?

Dennis Dale said...

So I take it the problem with this ten per cent plan is that it isn't giving the university the best available NAMs.

The middle-class or better-off black and brown kids, the smarter ones, are more often going to middle class schools and lagging behind whites and asians. Meanwhile anyone hardy enough to show up for four years at some urban hell hole is taking, via the ten percent plan, what would have been the middle class kids' through affirmative action.

The school's dilemma is it gets a lower class of its target percentage of color. Those kids are probably failing at higher rates and are not as uplifting as they could be (are they ever?), ultimately threatening to degrade the university's brand and scare off all those tuition-paying white and asian parents and whose progeny might be expected to donate a building or two down the road.

Anonymous said...

It's funny how not only Verrilli but all the liberal commentators are parroting the BS term of holistic assessment. Calling the race-based admissions process at selective schools holistic is about as credible as the insistence of the Soviet Communist Party that the country was democratic.The NAM deficiencies in purely academic measures like the SAT and GPA are so large in selective schools that if race weren't the decisive factor, then the NAMs who get accepted would have to have a preposterously large advantage over whites and Asians in terms of "leadership, activities, awards, work experience, community service, family's economic status" etc. In practice, whites and Asians are likely to be superior to NAMs also in terms of non-academic criteria, and the situation where a white or Asian applicant and a NAM applicant are absolutely the same in every respect other than race almost never occurs.

dearieme said...

In case I haven't treated this to you before, here is my own rule for tie-breaking at university admissions.

If the two who tie are male, admit the younger; if female, admit the prettier; if one of each, spin a penny.

Alan Stewart said...

The humour of the situation is enhanced by the American habit of referring to and addressing their attorneys general as "General". Top brass among attorneys, people are thinking? Uniquely in the English-speaking world, they do not realize that in the phrase "Attorney General", "General" is an adjective.

Alan Stewart said...

The humourousness of the transcript is enhanced by the American habit of referring to and addressing their attorneys general as "General". Top brass among attorneys, people are thinking? Uniquely in the English-speaking world, they do not realize that in the phrase "Attorney General", "General" is an adjective.

Cail Corishev said...

My bipolar ex-girlfriend could tell a more convincing lie under questioning than this.

Their argument basically boils down to:

We never look at the box marked "NAM" and use that to decide whether to admit a student. Instead, we look at the overall person and think about how he would contribute. So we take race into consideration as a driver of that, but not as a direct factor itself, so you can't pin us down as having used race.

We can't say when we'll have achieved a critical mass of diversity, because you told us that would be too much like a quota. So it's your own fault that we can't tell you what our goal is.

Therefore, we're just going to keep admitting more and more minorities based on "holistic" nonsense, and you're going to have to come check out the results every few years and tell us when YOU think we've achieved Diversity.

In the meantime, you can't criticize or ban our methods, because we don't have methods. We just have admissions officers admitting people they think will add to the awesomeness of the university.

AMac said...

The liberal justices aren't embarrassed by the credulous and fawning nature of their chatting up of the Solicitor General. That performance shouldn't be dignified by the term "questioning".

It is as if their vetters began by posing this stumper: "Are you deeply and profoundly puzzled by the meaning of the following Dalrymple quote... In order to proceed, answer "Yes!."

For all of the faults of Romney and his policies, that's a reminder of one area in which the country would benefit from a change in leadership.

Nexin said...

"So my understanding of what the university
here is looking to do, and what universities generally
are looking to do in this circumstance, is not to grant
a preference for privilege, but to make individualized
decisions about applicants who will directly further the
educational mission. For example, they will look for
individuals who will play against racial stereotypes
just by what they bring: "

If this is their goal, Universities have been fucking up mightly at it, and get worse at it every year. Nearly all the NAMs you see at most colleges conform well to pretty much every negative stereotype of their groups in dress, speech and behavior that Jesse Helms would have been frustrated with.

If they're bringing in the Hispanic fencers or African American opera sopranos, they're doing a mighty good job of hiding it at nearly every university.

Commodore said...


Anonymous Anonymous said...

What galls me is that even in Calif. let alone nationally, the majority is opposed to affirmative action, illegal immigration, gay marriage, for the death penalty, three strikes etc but they vote in politicians more liberal than them who govern against their will. Who can explain this? The liberals I know can only sputter when asked."

In many cases the politicians pose as being more to the right, and more in-line with middle America than they actually are at election time. Its why Obama around this time every 4 years talks about apple pies, his white mother and grandparents, and his time in a Christian church.

In other cases, you have a situation where the only two candidates with major funding and therefore a shot at actually winning, are both spouting off liberal ideas, perhaps only to different degrees. Though Obama unabashedly supports mass immigration to the US, even Romney seems to go with the flow and talk about giving away green green cards, etc. In these cases, you have to go with the lesser of two evils.

fondatori said...

Any 18 year old who has 'mastered classical Greek' is certainly a sincere Christian who wants to read the New Testement in its original form so I'd be pretty shocked if our academy were to discriminate in favor of such applicants.

Marlowe said...

In the meantime, you can't criticize or ban our methods, because we don't have methods.

Kurtz: Did they say why, Willard, why they want to terminate my command?

Willard: I was sent on a classified mission, sir.

Kurtz: It's no longer classified, is it? Did they tell you?

Willard: They told me that you had gone totally insane, and that your methods were unsound.

Kurtz: Are my methods unsound?

Willard: I don't see any method at all, sir.

candid_observer said...

"JUSTICE SCALIA: Call it a cloud or
something like that."

A thing of sarcasm is a joy forever.

The discussion is truly amazing. The argument seems to be that the college administrators should be fully trusted to employ race as a factor in an utterly ineffable process to achieve an utterly ineffable goal -- and that that should be the precise and correct interpretation of the relevant law.

It's like the earthly counterpart to the Holy Trinity: mere mortals can't understand.

NOTA said...


That's partly the effect of AA, I think. If the average black student is, say, at the 10th percentile of his class in terms of intelligence and preparation, then you will notice that the black students at your university congregate in the least demanding majors and classes, that they're not as serious students and not as hard workers and not as bright as the average student, because that's what the selection criteria for black and white students has ensured would happen. It's like if you live in a town where some families are so important, their kids always get to start on the high school football teams, you will notice that the kids from the good families are, in general, less capable and hard working players than the other starters.

This effect is independent of the population distribution. If you implemented lower admissions standards for green-eyed red-haired people across the board, then everywhere but at the top schools, you'd notice that all the green eyed redheads were majoring in sociology or education and seldom found their way to the library or to study sessions. You could create stereotypes of how green-eyed redheads were stupid and lazy by implementing such a policy.

NOTA said...


The obvious guess is that there are other incentives for politicians to support those things, even if they're vote losers.

One incentive is almost certainly money--some issues are critical for fundraising. If there are some big donors who care a lot about some issue (say, support for Israel or gay marriage), then politicians have a pretty serious incentive to take that side of the issue. From what I have read, every national-level politician spends a huge amount of his time raising money to run for election/re-election, so this probably matters a great deal. The claim I've heard is that Obama's recent "evolution" on gay marriage was driven by the need to raise money from gay and gay-friendly donors.

Another incentive involves entrenched interests that can fight back. Affirmative action has well-defined beneficiaries who will fight to keep it, as well as thousands of people whose jobs depend on implementing it, whereas the people who lose by it are much more diffuse and don't usually even know for sure that they're losing anything by it. Gay marriage similarly has a well-defined interest group who know who they are and have some cohesion.

Still another incentive involves not making enemies who can make a public fuss--media companies and big visible interest groups and super PACs are all examples. Take a public stand against something most broadcast media are morally opposed to, and you will get hammered by people who buy ink by the barrel and own lots of megaphones.

It would be interesting to try to work out which of these (or other incentives) is having the biggest effects on given issues.

NOTA said...


Which one is the lesser evil, again? I'm not sure I really care wherher I get poison disguised as food or poison disguised as antidote--the end result is the same.

Anonymous said...

So many paleocons, begging the mighty Nine for just a taste of that sweet, sweet, judicial activism, doled out as only uncle Antonin and his gang can.

As in Lochner, Bush v. Gore, Citizens United, and dozens more.

Luke Lea said...

"For example, they will look for individuals who will play against racial stereotypes just by what they bring."

Do they ever deliberately admit dumb Jews -- who score at or near the minimum cutoff for SAT-- and who are also from unprivileged backgrounds? Maybe they should.

Anonymous said...

"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."

You will not automatically get a place just because you're not White as you may be part of the dominant oppressive discourse against the Other and as such will not contribute to the broader vision of diversity. Better a submissive SWPL than an Oreo!

Being black is not enough. You must be Holistically Black.

ben tillman said...

So I take it the problem with this ten per cent plan is that it isn't giving the university the best available NAMs

You mean "NWAMs". Remember, Whites are a minority in Texas.

ben tillman said...

The humourousness of the transcript is enhanced by the American habit of referring to and addressing their attorneys general as "General". Top brass among attorneys, people are thinking? Uniquely in the English-speaking world, they do not realize that in the phrase "Attorney General", "General" is an adjective.

There is no such habit.

Silver said...

Is race a factor? Does race even exist? Perhaps it's not given to mere mortals to ponder such mysteries.

Anon87 said...

Thanks Steve. As an occasional reader of Supreme Court decisions, your annotated transcript of the testimony was great stuff. I wish the right-leaning members of the media were smart enough to take the time to address topics like this and get it in front of more people. Although that may just lessen people's opinion of The System and give up.