Reports from oral arguments in Fisher v. UT Austin are coming back, and as expected, the future of affirmative action looks uncertain. It also looks like it’ll come down to Justice Anthony Kennedy.

Lyle Denniston with the indispensable SCOTUSblog offered some first reactions:

For all of the hype that preceded this argument, with fear and loathing among supporters of affirmative action, the entire seventy-nine minutes of exchanges were subdued, sometimes highly technical, and had more of the flavor of a seminar than a grand constitutional confrontation. U.S. Solicitor General Donald B. Verrilli, Jr., in his brief stint at the lectern, essayed some soaring rhetoric about the virtues of a multicultural society, but it seemed a bit too calculated.

What was almost immediately evident in the argument was that the outcome almost certainly will lie in Justice Kennedy’s choice of how to vote. The Chief Justice, Scalia, and Justice Samuel A. Alito, Jr., were decidedly hostile to the Texas program. Justice Clarence Thomas, who said nothing, as usual, was a dissenter in Grutter, and thus probably can be counted on to disapprove of the Texas approach. Justices Stephen G. Breyer and Ruth Bader Ginsburg, both in the majority in Grutter, seemed unimpressed with the challenge to it, although Ginsburg seemed somewhat less enthusiastic about Texas than Breyer although she said its plan would fit into Grutter. Breyer was somewhat dogged in pressing attorney Rein on whether he wanted Grutter overruled. “Why overrule a case into which so much thought and effort went on andso many peopl across the country have depended on?” Breyer asked. Justice Sotomayor, early and often, left no doubt that she would have joined Grutter had she been on the Court then.

At the very start of the oral arguments petitioner Abigail Fisher’s attorney, Bert Rain, got just a handful of words out before he was pelted with questions from Justices Ginsburg and Sotomayor about exactly what sort of harm was done to Fisher, given the fact that she landed on her feet just fine even after she was rejected from UT Austin.

JUSTICE SOTOMAYOR: Can I go to another side? She’s graduated.

MR. REIN: Correct.

JUSTICE SOTOMAYOR: She disclaimed the desire after her application to go to the school at all. She was permitted to apply for the summer program and get in automatically, and she didn’t, correct?

MR. REIN: No, that’s not correct, Your Honor. She — she was not automatically admitted. She was considered for the summer program and rejected. You are talking about the CAP program, where she could have attended a different university in the Texas system, and had she been able to achieve -

JUSTICE SOTOMAYOR: But she’s graduated.

MR. REIN: She has graduated.

JUSTICE SOTOMAYOR: Injunctive relief, she’s not going to get. So what measure of damages will she get or will she be entitled to?

MR. REIN: Well, that issue, of course, is bifurcated, and we’ve reserved the ability to -­

JUSTICE SOTOMAYOR: But you have to claim an injury, so what’s the injury -­

It’s a question that continues to puzzle many outside of the courts. For more, the transcript from today’s proceedings is available online (PDF). Stay with Colorlines for more analysis in the coming days about what went down in the courtroom today.

Read this online at http://colorlines.com/archives/2012/10/reports_from_supreme_court_justices_skeptical_about_ut_austins_program.html


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