On October 10, 2012, the Supreme Court heard oral arguments in the case. Bert Rein represented the petitioner, Gregory Garre represented the respondent university, and Solicitor General Donald Verrilli
argued in support of the respondent.
During the beginning of the petitioner’s argument, Justices Sotomayor
asked questions about whether the case was moot
. Specifically, they were concerned with the university's arguments that Fisher would not have earned admission regardless of her race, that she had already graduated from college, and that she only named the $100 application fee as real damages. Scalia
commented that the harm of racial discrimination
alone created an active controversy under the Court’s previous Equal Protection
Justices Scalia, Alito
, and Roberts
asked many questions about the definition of a “critical mass,” which Grutter
named as the central measure of diversity. Scalia started calling it a “critical cloud” after the university’s lawyer failed, upon multiple requests, to define the central measure of diversity.
Chief Justice Roberts asked whether an applicant who was one quarter or one eighth Latino would be permitted by the University to check the “Latino” box.
Mr Garre responded that the applicant is entitled to self-identify any race and the University did not ever question that determination.
Legal analysts concurred that the process of oral argument indicated that a majority of the justices disliked the university's position.