The transcript of Wednesday’s oral argument was released that afternoon, and it’s fascinating reading. So fascinating, in fact, that I think I’m going to make a project of writing about it next week — a series of posts excerpting and discussing the most interesting exchanges.
In the meantime, I wanted to just highlight a couple of things.
First, the justices were clearly paying attention to the “standing” issue — the question of whether Abigail Fisher has a case she’s properly situated to bring before the Court. You can’t just decide to sue the government because you don’t like something they did. (If you could, everybody would be suing all the time, and the court system would collapse.) You have to show that you’ve been harmed in a way that the courts can fix, and the standards for what kinds of harm count in which circumstances are narrow and complicated.
I’ll go into this in a little more detail next week, but given the way I broke down the case’s possible outcomes in my last post, it’s worth underscoring that the Supremes may just rule that Fisher wasn’t harmed, or can’t be made whole, and show her the door. If that happens, we’ll go through all this again with another lawsuit brought by a better plaintiff at some point in the next few years — possibly with a different lineup of justices on the Court, and almost certainly with Elena Kagan able to participate fully.
Second, Justice Sotomayor was a pretty strong questioner in this, her first campus affirmative action case. Given that she got into Princeton as an affirmative action admit, and that she once described herself as “a perfect affirmative action baby,” that’s perhaps not surprising. But it seems to me that the impact of Sotomayor’s advocacy, and her life experience, may be felt more in the next phases of the process than it was in oral arguments. Sonia Sotomayor would not be sitting on the Supreme Court today if affirmative action didn’t exist, and that fact renders the Court’s dilemma in this case more concrete than it otherwise might be.