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Garre responded that critical mass is not a certain number but rather a point where “African Americans and Hispanics do not feel like spokespersons for their race.” At that moment the university would stop using race in admissions, he said.
But Fisher’s lawyer, Bert Rein, reiterated the Chief Justice’s concern: “Where is the end point? If you have nothing to gauge the success of the program … there is no judicial supervision.”
Questions from liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer implied support for the program. Breyer questioned Rein why the court should backtrack on past decisions that have allowed affirmative action.
Breyer asked Rein why the court should overturn a precedent into which “so much thought and effort went” and which “so many people across the country have depended o n .”
The overall tone of the hearing suggested that while the court might not uphold the Texas plan, there would not be a majority of justices to broadly strike down the use of race in admissions.
The justices who appeared most resistant to the Texas plan were Roberts and Justices Samuel Alito and Antonin Scalia. Justice Clarence Thomas, who asked no questions, would likely side with those conservatives based on his past writings on affirmative action.
Justice Anthony Kennedy, whose position may be decisive, signaled some concerns with the Texas plan but did not indicate by his questions that he was ready to curtail such nationwide practices.
NINE YEARS OF RELIANCE
The case arises nine years after the Supreme Court narrowly upheld affirmative action in a dispute over the University of Michigan Law School’s admissions practices. By a 5-4 vote the court in 2003 said universities could consider an applicant’s race alongside a host of other factors to improve diversity.
Public universities in 43 states that allow affirmative action and thousands of private colleges and universities have relied on that decision, Grutter v. Bollinger, to include race in their admissions decisions.