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.

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Insurgency Theory in Fisher II

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