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....More at the link. And I'll have more later in the day, when I can get to the transcript/audio.
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....