Fisher v. University of Texas is perhaps the most consequential case on the Supreme Court's docket this year, and will determine whether the University of Texas' efforts to promote diversity and increase educational opportunity by considering an applicant's race in the admissions process will be permitted to continue. The Court's decision could have wide-ranging ramifications for similar admissions programs across the United States.
The last time the Court reviewed the use of race in university admissions in 2003, the Court narrowly upheld the University of Michigan Law School's policy in a 5-4 decision, Grutter v. Bollinger, authored by Justice Sandra Day O'Connor, which has since retired from the Court, and was replaced by the more conservative Chief Justice Roberts. The center of the Court has shifted to Justice Anthony Kennedy, who dissented in Grutter, and would have voted to strike down the law school's race-conscious admissions policy.
Although few legal minds devote journal space to analyzing oral argument, oral argument offers tremendous insight. The Court is so closely divided on major cases that a perceptive listener can usually divine clues as to where the individual Justices may be leaning, and thereby predict the likely outcome of a case. There are a few things in particular that could portend a particular outcome in Fisher, and to watch out for.
First, the Chief Justice will set the tone. It is now an open secret that the Chief Justice's apparent last-minute vote change at the end of last term in the momentous Affordable Care Act decision, National Federation of Independent Business v. Sebelius, reportedly incurred the anger of some of the Associate Justices, especially Justice Kennedy. It is possible that the Chief Justice might see this case as a way to heal the rift between himself and the conservative wing of the Court.
Chief Justice Roberts has been a consistent critic of the use of race by government actors. If the Chief Justice is as rhetorically measured as he was in Ricci v. Destefano, that will signal a perceived need to lure Justice Kennedy or some other Associate Justice to his side. If his rhetoric is harsh, stark and dichotomous as it was in his opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1, then that will signal that he believes he has a majority of the Court already on his side, and will gladly use this case to unify the conservative bloc.
Second, look for Justice Kennedy to ask the parties about the requirements of narrow tailoring, and whether they should adopt a "strong-basis-in-evidence" test in particular. Justice Kennedy has a long history of supporting race-conscious government policies in principle, but striking them down as insufficiently narrowly tailored. His questions about the requirements of narrow tailoring may reveal whether he believes the Texas Ten Percent Plan's relative success in generating some diversity in the undergraduate student body renders additional race considerations unnecessary. If he asks Texas to defend its plan in light of the undergraduate student body diversity generated by the 10 percent plan, then that is a very strong signal that he is likely to vote to strike down the additional consideration of race.
Furthermore, if Justice Kennedy asks about a "strong-basis-in-evidence" standard, which the Petitioner, Abigal Fisher, and her amici ask the Court to adopt, then that may also signal that Justice Kennedy is interested in adopting that standard as a requirement of narrow tailoring. If so, that would be a clear signal that he is leaning towards striking down UT's admissions policy, and searching for grounds to do it. Justice Kennedy has adopted that standard in the Title VII context, so it was clearly something offered by Petitioner and her amici to target Justice Kennedy.
Finally, pay close attention to any hypotheticals offered by Justice Kennedy or pursued by him in response to a question posed by another Justice. In Parents Involved, Justice Kennedy posed a question that clearly signaled his support of race-conscious policies, yet also underscored his concerns with explicit racial classifications. He asked:
"[Suppose y]ou need to build a new school. There are three sites. One site is all white. One site is all black. One of the sites would be a diversity of races. Can the school board, with the intent to have diversity pick site number three? Assuming some race-conscious measures are permissible to have diversity, isn't it odd to say that you can't use race as a means?"
Unfortunately for the school districts whose student assignment policies were at issue, he followed up by offering this observation as well:
"The problem is that unlike strategic siting, magnet schools, special resources, special programs in schools, you're characterizing each student by reason of the color of his or her skin. That is quite a different means. And it seems to me that that should only be, if ever allowed, allowed as a last resort."
Given these remarks, it was no surprise that Justice Kennedy was the deciding vote that ultimately struck down those district's policies, but nonetheless voted to uphold the use of race-based policies in principle. And, although the Court's recent opinion regarding the Affordable Care Act may caution us from reading too deeply into the vagaries of oral argument, and remind us of the unpredictability of the high Court, oral argument will reveal far more than it conceals.