Insurgency Theory in Fisher II

This post discusses Gregory Garre’s snippy argument in favor of affirmative action last week and questions whether it was a conscious application of insurgency principles.

Last week, the Court heard argument in Fisher v. University of Texas at Austin for the second time.  The first time, the Court arrived at a brokered solution in which it essentially punted the ball–a supermajority issued a compromise opinion commanding the Fifth Circuit to go back and look at the case again.  As it turns out, this brokered opinion was largely the result of some stellar brinksmanship by Justice Sotomayor, who scared the jenkies out of Justice Kennedy with a blistering dissent and made him back down (Joan Biskupic broke this story).  The case came back, and as I’ve explored in a prior post, the stars are now aligned for the conservative majority of the Court to deal a fatal blow to any race-conscious admissions policy.

This fact was not lost on Greg Garre, who argued the case for the University of Texas (and in favor of keeping affirmative action).  He is a regular player in front of the Court, having argued 39 cases (and counting). Prior to his current stint at Latham & Watkins, he worked in the solicitor general’s office under President Bush.  He knows the current Court quite well, and he can count to five.  He knew that he had no chance of a clear win in this case, because Justice Kagan was recused.  He knew that he had an overwhelming risk of a clear loss, because four justices (Roberts, CJ; Scalia/Thomas/Alito, JJ) are wholly hostile to race-conscious programs that benefit blacks and Hispanics.  Justice Kennedy, while not quite on their level, dislikes such programs as well.  So Garre was facing a situation where he was likely to lose and had no hope of winning.

Garre took an interesting approach to this conundrum, one that I believe was intentional.  Garre was repeatedly borderline rude to the conservative justices, and not just in that he was snippy or brusque–Garre violated perhaps the most inviolable commandment during oral arguments.  He suggested that the conservatives were politically motivated and impugned their good faith in questioning.  In response to Justice Alito’s line of questioning about whether minority students admitted under one program were exclusively poor and disadvantaged, Garre replied, “Your honor, we’ve never claimed that [they are all poor].  That’s a straw man argument.”  Tr. of Oral Arg. at 44-45.  Later, he used similar language in response to Justice Scalia’s question about whether individual classes at Texas were sufficiently integrated.  “Your honor, that’s a caricature of the University’s interests here.”  Tr. of Oral Arg. at 56.

These exchanges look relatively benign on paper, but they were poisonous on the audio transcript.  Garre expressed a level of near-contempt for the questioning coming his way.  Advocates almost never do this.  So the question becomes, why?  It could just be his over-familiarity with the justices.  Solicitors general have felt comfortable rebuking the Court in a way that non-solicitors wouldn’t.  See, e.g.Bond v. United States, Tr. of Oral Arg. at 38 (General Verrilli, in response to joking exchange between JJ Scalia & Alito:  “With all due respect — this is serious business.”).  But I don’t think that’s what Garre was doing here.

Multiple commentators in varied fields have noted that when a player is facing insurmountable odds, she should introduce as much randomness and chaos into the proceedings as possible.  Malcolm Gladwell referred to this as David & Goliath Theory.  It applies to insurgents attempting to fight larger armies–they have to knock the larger army off of its moorings and engage it in unpredictable, chaotic encounters.  See Nagl, Learning to Eat Soup with a Knife:  Counterinsurgency Lessons from Malaya and Vietnam (Praeger Publishers 2002).  It applies in football as well–as Bill Barnwell and Robert Mays frequently pointed out, when a team like Jacksonville plays a team like New England, Jacksonville should execute as many unpredictable strategies as possible and introduce as much randomness into the game as possible:  Jacksonville’s chances of winning the coin flip that emerges from the introduction of randomness are higher than its chances of winning a football game against New England.

I think that’s what Garre was doing here.  One of the seemingly-inviolable rules of oral argument is that you do not suggest that the justices have already made up their minds.  But I think Garre looked at the numbers, realized he was fighting a near-hopeless battle, and decided to destabilize the proceedings as much as possible.  Perhaps he wanted to brush Justice Alito back off the plate a bit, or maybe he just genuinely wanted to introduce variance.  It’s a commendable strategy if it’s what he was doing, because he sacrificed a portion of his personal relationship with the Justices for the sake of a client.  Sometime before June, we’ll find out if his insurgency strategies worked.

Insurgency Theory in Fisher II

An Additional Theory Supporting Prof. Hall’s Partially Prudential Doctrine of Mootness

Prof. Matthew Hall (my former civil procedure professor) has proposed a “partially prudential doctrine of mootness” in an effort to distinguish those moot cases that courts should dismiss from those moot cases which courts should still entertain.  See Matthew I. Hall, The Partially Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev. 562 (2009).  Under Professor Hall’s framework, courts should dismiss “issue moot” cases, in which the underlying issue has been irrevocably resolved, but should retain jurisdiction over “personal stake moot” cases, in which only the specific litigant’s personal interest in the case has evaporated.  Id. at 566.

I think this formulation is right, and I am far from the most notable party to agree with it.  See Killian v. Concert Health Plan, 742 F.3d 651, 673 (7th Cir. 2013) (Posner, J., dissenting).  But I think that the doctrine is bolstered by another argument at the Supreme Court level, one that differentiates issue mootness at One First from issue mootness in the district or inferior appellate courts–the develop of mechanisms within SCOTUS and the Supreme Court bar that circumvent the policies underlying justiciability doctrines.

We understand justiciability’s necessity in two capacities–a constitutional capacity and a normative capacity.  As a constitutional matter, Article III asks federal courts to entertain only cases or controversies.  U.S. Const. art. III, § 2, cl. 1.  We have interpreted this as a constitutional mandate that courts entertain only discrete cases with particularized stakes that come before them.  See Muskrat v. United States, 219 U.S. 346, 351-52 (1911).  We have provided prudential and normative justifications for this doctrine–the parties who litigate cases will litigate them more thoroughly with actual stakes, the underlying facts of the case provide a guidepost for courts to examine how a doctrine works in the real world, and the requirement to examine only cases or controversies prevents the courts from reaching out and deciding broad policy by fiat.  See Warth v. Seldin, 422 U.S. 490, 508 (1975); see also Letter from John Jay to George Washington, The Correspondence and Public Papers of John Jay. Edited by Henry P. Johnston. 4 vols. New York and London: G. P. Putnam’s Sons, 1890–93.

All justiciability doctrines theoretically serve these ends.  Thus, standing doctrine ensures that parties with a real interest litigate cases.  Ripeness doctrine ensures that those parties are properly invested in a case before they bring it.  And mootness ensures that the parties haven’t picked up their stakes and left town during the pendency of a lawsuit.  Additionally, justiciability is supposed to ensure that the courts do not function as a super-political branch, reaching out to find cases to decide and usurping the legislative branches.

But the continued development of the Supreme Court and the Supreme Court bar has eroded at least part of the normative and prudential justification for requiring full compliance with justiciability doctrines during SCOTUS review.  Undeniably, a fully-developed record is important, and justiciability doctrines carry full prudential force in the lower courts.  Those lower courts are also required by statute and tradition to hear most of the cases that they hear, rendering concerns about selective application of judicial power less pertinent.

But the Supreme Court has honed its case selection to a fine art, and the advocates that routinely play in front of that Court have elevated their case selection and presentation to a science.  First, the Supreme Court has petitioned the Congress (successfully) to strip almost all mandatory cases from its docket; certiorari grants now account for essentially every case the Court decides.  Second, the justices pool their resources into a certiorari pool, ensuring that cert petitions receive a thorough review and that the Court can hunt for the cases it wants with more precision.  Most importantly, the Supreme Court bar has honed its abilities–repeat players now have a much greater chance of getting a cert petition granted, and ideological players are able to advance issue-specific agendas with ever-greater precision.  (Obviously, issue advocacy is not new.  Thurgood Marshall and the NAACP did this quite well in the 1940s and 50s.  But I would submit that the Supreme Court bar now is more ideologically diverse and more specialized).  See Adam Liptak, Justices Offer Receptive Ear to Business Interests, N.Y. Times, Dec. 18, 2010.  All of these factors come together in a Supreme Court that is presented with multiple opportunities to address ideological issues in perfectly-teed-up vehicles.  It can reach out and make policy, and the Bar is talented enough to render any set of facts that the Court ideally desires.  We should at least be honest about it.

The Supreme Court, like it or not, is not simply “confronting the cases that come to it.”  Under these circumstances, the normative assumptions that underlie the reticence to hear personal-stakes-moot cases simply no longer exist at the SCOTUS level.  There are many factors to recommend Prof. Hall’s partially prudential model, but I think this factor additionally cuts towards its adoption in the context of Supreme Court review.

An Additional Theory Supporting Prof. Hall’s Partially Prudential Doctrine of Mootness