CrimLaw

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God Bless our Troops.
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I listened to the Michigan racial preference cases last night (from C-Span). I was working on prepping a jury trial at the time so I'm sure I missed some minutiae but three strong themes stick out in my mind:

(1) Ginsberg scored some powerful points at the beginning of the argument when she committed "hijack by amicus" (from Slate; see last entry). The anti-preference attornies appeared totally unprepared to discuss the military brief and the implications for the military (figure the odds - there were only amici briefs filed by every organization under the sun). I did not hear what I consider to be a satisfactory answer from anyone. Perhaps it was misplaced because the military academies don't fall under the 14th Amendment like Michigan but it was a powerful moment.

(2) When Justices tried to get a number for "critical mass" the pro-preference attorney fired back but never answered the question. There is obviously an absolute minimum number at which critical mass must be presumed to occur. To state otherwise is disengenuous.

(3) When Justices put forth the question, "if the problem is that not enough minority students qualify under the standards you've set, why don't you lower the standards for everyone until there are enough qualified minorities?" the pro-preference attorney blustered but never actually answered satisfactorily. Points were scored; the question is whether this is the type of solution which might bring O'Connor to the anti-preference side.

(4) Collaterally, the information came out that Boalt Hall has raised the number of minority admissions back to the level where they were prior to the abolition of the use of race as a factor in California. My question is whether this has been done honestly and the admissions are all held to the same standard or whether Boalt is redlining (proxy of location in place of race).

In any event, from the questioning alone I see three solid anti-pref votes (Scalia, Rhenquist, Thomas), one probable anti-pref vote (Kennedy), two likely but not ones I'd bet on (O'Connor & Stevens). I foresee and opinion written by O'Connor or Stevens for a fractured court. Hopefully Stevens will write it because it will waffle less and be an intelligently written decision. But politically it will probably make more sense to assign the opinion to O'Connor to keep her onboard.

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