October 10, 2012

Justice Breyer directly asked whether Grutter — the case approving of a type of affirmative action admissions — should be overruled?

He was trying to pin down the lawyer who is challenging the affirmative action program at the University of Texas. Kevin Russell at SCOTUSblog reports:
After some prevarication, he seemed to say no (and certainly didn’t say “yes” clearly).  Perhaps significantly, none of the conservative Justices interrupted to urge him to give a different answer, even though Justice Scalia did just that with respect to other questions and answers during the argument.
Prevarication? I'll have to listen to the audio later, but that's a troubling word choice. I wouldn't use it unless I thought the lawyer was lying or at least being deceitful.  The OED defines the word this way:
Avoidance of straightforward statement of the truth; equivocation, evasiveness, misrepresentation; deceit; an instance of this.
But it also gives a second meaning, which is presumably all Russell meant:
In weakened use: stalling or playing for time by means of evasion or indecisiveness; procrastination, hesitation.
To my ear, "prevarication" represented an inappropriate attack on the lawyer's integrity. I'm guessing the lawyer was just trying to pick the most likely path to victory, but it's weird that in this case he wouldn't already know his answer. Grutter — which permitted race to be taken into account in a subtle, "holistic" fashion — is the precedent in this area, and it can be distinguished, for a small win, or overruled, for an immense win.

Interestingly, there's an obsolete legal meaning to the word "prevarication," which goes back to the 1500s:
The action (esp. in a lawyer or advocate) of pretending to represent or give evidence on behalf of one party whilst in collusion with an opponent.
And there are some other obsolete or rare meanings: "Deviation from a course thought to be right or proper...," "Departure from a rule, principle, or normal state; perversion or violation of a law, code of conduct, etc.; deviation from truth or correctness, error...," "Divergence from a straight line or course. ...," "Breach of duty or violation of trust in the exercise of an office; corrupt action, esp. in a court of law."

UPDATE: SCOTUSblog's Amy Howe after the second half:
Greg Garre, representing the university, repeatedly reminded the Justices that Bert Rein and Fisher were not asking the Court to overrule Grutter....

Solicitor General Don Verrilli, appearing as an amicus in support of the university for ten minutes, also reminded the Court that Rein had not asked it to overrule Grutter....
More at the link. And I'll have more later in the day, when I can get to the transcript/audio.

32 comments:

chickelit said...

"Prevication" I think Yashu recently used that word here recently--I had to look it up because it was striking.

The Crack Emcee said...

Grutter — which permitted race to be taken into account in a subtle, "holistic" fashion,...

NewAge buzzword alert - scrap that law, it's wrong.

Hagar said...

All of thee above?

Seeing Red said...

I thought Florida also accepts the top 10%?

chickelit said...

"prevarication" I think Yashu used that word here recently--I had to look it up because it was striking and because I couldn't spell it.

Nomennovum said...

In my experience, most people don't know what prevarication means. They think it means an unwillingness or avoidance of answering a question.

ndspinelli said...

There's a thin line between prevarication and dissembling. I prefer lying sack o' shit, myself.

AF said...

"To my ear, "prevarication" represented an inappropriate attack on the lawyer's integrity."

That's silly. The context is a question during oral argument about the lawyer's legal position in the case. In that context, avoiding a straightforward statement, equivocation, evasiveness, even unwillingness to give a straight answer, is a matter of advocacy, not truthfulness.

cubanbob said...

He should not have weaseled and instead should have said yes. What else is this case but an appeal to overrule Grutter? So the liberal justices heads would have exploded, so what. It would have been revealing what the line of questioning would have been if he had been direct in his response.

Bryan C said...

The correct answer is: "Yes, obviously. Grutter is a poisonous, cowardly and nonsensical abomination. Burn it. Burn it with fire."

I'd make a bad lawyer.

Simon said...

It ought to be overruled—I would siagree with Bryan C only insofar as I'd say "nuke from orbit, it's the only way to be sure"—but we'll have to see.

Bender said...

He should not have weaseled and instead should have said yes. What else is this case but an appeal to overrule Grutter? So the liberal justices heads would have exploded, so what.

He should NOT have necessarily said "yes" because he has a duty to his client, and not to everyone else interested in the case.

From the strict perspective of his client, the correct answer is "overruling a prior case is not necessary for my client to prevail." This is the correct answer especially if you know that the heads of some of the justices will explode.

Now, he can expand on that and then perhaps say "we would not have any objections to overruling Grutter, that would clarify the law generally, but we should still win even without touching it."

If he says, "yes, absolutely overrule Grutter because we cannot win otherwise," then he has lost his case (because of those exploding liberal heads).

Lyssa said...

I can't imagine how he didn't have a solid, practiced answer to that question ready. Did he really not think that it would come up?

Bart DePalma said...

The plaintiff's case would be far clearer and stronger if she simply argued for a bright line rule that all government racial discrimination is per se a violation of equal protection.

Then note that prior Supreme Court cases tolerating government racial discrimination were predicated on there being a time limit on such "affirmative action."

That time limit has come.

Simon said...

Bart DePalma said...
"That time limit has come."

That time limit was 25 years from Grutter, so we either overrule Grutter or, this being 2012, they lose. I understand Bender's point, and generally I'd agree, but this is one of the exceptions. The court took this case to overrule Grutter, and the exploding heads of the four liberal justices will not stop the four conservatives and Justice Kennedy from doing so. A lawyer hedging his bets might.

cubanbob said...

Bender, Bart De Palma beat me to the punch. His client's case isn't advanced by upholding Grutter. From what I read from the link and understood from it, the liberal justices asked that question for a legitimate reason, without Grutter being overturned, why is he in front of the court? it's one thing to say the top ten per cent of each high school's graduating class gets a shot to get in, it's another to thing to say yes the top ten get in but since there actually aren't enough slots we have scale back on all top ten percent graduates and first use racial quotas to fill those available slots.

Tyrone Slothrop said...

People shouldn't use big words whose meaning is not entirely clear to them. I don't know if Russell is a lawyer, but I assume he is. Lawyers spend their entire careers learning how to make language encompass many things outside of the plain meaning of the words. Imprecise language to them is a feature, not a bug. I'm not surprised at the misuse of the word "prevarication." For all I know, Russell meant it as a compliment.

Bender said...

It doesn't really matter what is argued. We all know that the new rule of constitutional interpretation is that if government action doesn't fit under one theory, then you keep going down the line until you find some disingenuous peg to hang the government's hat on.

If the use of AA is impermissible under the 14th Amendment to correct past racial wrongs, then it is entirely permissible under the Taxing Power of states, the federal government, and John Roberts' ass.

All too often the Court has engaged in such Lucy-with-the-football decisionmaking. Never be surprised when it happens.

David said...

"but it's weird that in this case he wouldn't already know his answer. Grutter — which permitted race to be taken into account in a subtle, "holistic" fashion — is the precedent in this area, and it can be distinguished, for a small win, or overruled, for an immense win."

He doesn't even have to choose, does he? (1) Grutter should be overruled because . . . (2) even if not overruled, it's distinguishable because . . .

I'm no expert in appellate practice, but it does not seem you are giving anything away with that answer. Do the appellate experts here see it any differently?

David said...

Does it matter if one of the parties asked that the decision be overruled?

If the decision is incorrect, doesn't the court have the obligation to overrule? Put another way, how can they enforce a law that a majority of the members of the court believe to be unconstitutional.

I can see why the lawyer does not press this. His primary job is to win the case for his client. If he thinks distinguishing the case is the best path to that result, I can see why he would approach it that way.

Revenant said...

I look forward to a ruling that racial discrimination through affirmative action is clearly allowed under the Congressional power to tax.

Bob Ellison said...

It's a typo. Russell meant "pre-verification". The Breyer asked the question, and the attorney check his notes.

cubanbob said...

Bender said...
It doesn't really matter what is argued. We all know that the new rule of constitutional interpretation is that if government action doesn't fit under one theory, then you keep going down the line until you find some disingenuous peg to hang the government's hat on.

If the use of AA is impermissible under the 14th Amendment to correct past racial wrongs, then it is entirely permissible under the Taxing Power of states, the federal government, and John Roberts' ass.

All too often the Court has engaged in such Lucy-with-the-football decisionmaking. Never be surprised when it happens.

10/10/12 1:30 PM

Too true. You might even be on to something. I can just see CJ Roberts concluding her non admission to UT which required her to go to another, more expensive university, is a form tax by another name. Although this is intended to be a mild joke, the scary part is that the court might actually see it that way.

Bob Ellison said...

Uh...oh, well. Typos abound.

traditionalguy said...

The final days of the sentence of affirmative racial discrimination as a remedy imposed upon the grandchildren of racists by Sandra Day O'Conner and her silly old black robbed buddies is upon us.

What will the fearful old women do now?

Alex said...

I prefer "lying rat fuck".

Michelle Dulak Thomson said...

Surely he meant "vacillation."

Richard Dolan said...

The write-up at SCOTUS blog was a bit odd. Perhaps just the pressure of posting something quickly during the argument. The exchange between Rein and Justice Breyer about whether plaintiffs were asking the court to overrule Grutter was clear enough -- nothing false or even particularly cute about the answer, and no indication that Breyer thought it was. And as the argument proceeded, it was clear that at least four justices felt that Grutter's framework was up for reconsideration, even if its basic premise that creating a diverse academic environment was a compelling state interest was not (at least nominally).

I didn't see anything in the oral argument to suggest that Justice Kennedy's views have changed much since his dissent in Grutter. It was pretty clear that both UT's laywer and the SG were making a play for his vote but I think they will be disappointed. Affirmative action in university admissions might survive but, if it does, it willl be a much more limited thing after this case. The days when a university could engage in racial balancing under the guise of 'holistic' evaluations where race was supposedly just one plus factor among many are numbered, and the number is much, much shorter that Grutter's timeline of 25 years.

RichardS said...

Why does it matter what the advocates asked for? Their job is to rule on whether the relevant law is constitutional. The Justices could very well reason that, in fact, to reach the correct decision they have to overturn Grutter.
That logic would seem to be reinforced by Robert's reasoning in the health care case. The goal is to find a correct reason, regardless of what was presented in Court.

Matthew Sablan said...

"If the decision is incorrect, doesn't the court have the obligation to overrule?"

-- It matters. If the court can reach its decision -without- having to overrule it, it won't. Once you reach a decision, you rarely look for additional reasons you are right, unless someone specifically asks (at least, that's my understanding.)

Beldar said...

Dear Lord, why can't anyone be honest enough to say: "Justice O'Connor, bless her heart, did a lot of good things on the Court. But Grutter is an unprincipled abomination, an obviously political decision justified by the fantasy that somehow, without any intervening constitutional amendment, something which is clearly contrary to the Fourteenth Amendment is actually permitted by it, but only for 25 years, at which point it won't be permitted anymore. It is indefensible, and it should not only be overruled, but its overruling should be celebrated by anyone who believes in constitutional government.

Beldar said...

In other words, it not only should be overruled, but just as much as the Civil Rights Cases of 1883, it should be something about which the Supreme Court is forever apologetic and more than a little bit ashamed.