Oral argument in the case of Fisher v. University of Texas has been completed. There has been lots of attention in the media on the arguments about the value of affirmative action in higher education admissions, as well as the probability that this case will mark a sea change in the use of affirmative action. But it has been intriguing that the issue of justiciability has been largely ignored, despite the attention to it during oral argument.
Looking at the transcript of the oral argument, questions about justiciability pepper the transcript. Justice Ginsburg interrupted Bert Rein, counsel for Fisher, early in his comments with the following question: “ The injury—if the injury is rejection by the University of Texas, and the answer is no matter what, this person would not have been accepted, then how is the injury caused by the affirmative action program?” Mr. Rein’s response was followed shortly after by another question by Justice Sotomayor:
JUSTICE SOTOMAYOR: Can I go to another side? She’s graduated.
MR. REIN: Correct.
JUSTICE SOTOMAYOR: She disclaimed the desire after her application to go to the school at all. She was permitted to apply for the summer program and get in automatically, and she didn’t, correct?
MR. REIN: No, that’s not correct, Your Honor. She—she was not automatically admitted. She was considered for the summer program and rejected….
JUSTICE SOTOMAYOR: She has graduated.
MR. REIN: She has graduated.
JUSTICE SOTOMAYOR: Injunctive relief, she’s not going to get. So what measure of damages will she get or will she be entitled to?
The questions by Justices Ginsburg and Sotomayor are attempts by them to address the problems of standing and mootness. One case that defines criteria for standing is Lujan v. Defenders of Wildlife (504 US 555 ). In that case, Justice Scalia outlined three criteria for standing: parties bringing suit must be able to show that they have suffered or be in imminent danger of suffering a concrete injury; that the injury must have been caused by the challenged action; and that the injury will be redressed by the relief requested in the lawsuit. Clearly, Justices Sotomayor and Ginsburg are troubled by the issue of injury and relief. Although it’s true that Fisher did not get admitted to her first choice school, the question is whether that’s a sufficient injury to justify granting cert to challenge the University of Texas admissions policy, especially when it appears that Fisher might not have been admitted and she has already graduated (and thus, it could also be argued that her case is moot). Is her harm really, as Stephen Colbert joked on “The Colbert Report” on Oct. 16, “[The great] injustice… [of] having to attend your safety school.” His comic point makes a serious one that the justices tried to raise—where’s the harm? Does Fisher’s situation show sufficient harm to justify overruling an established set of criteria for college admissions that is meant to bring about the accomplishment of a compelling goal for a university’s academic mission—student diversity?
It is ironic that it is Justices Scalia and Roberts, proponents of tightening standing, who seem not to be bothered by this question. Of course, it is a very plausible argument that given the slow pace of litigation, it is impossible to address issues surrounding college admissions in a timely fashion that would bring relief to those who feel they have been unfairly denied college admissions. The Court has certainly had to deal with the issue of timing in other cases– e.g., Roe v. Wade (410 US 113 ) and DeFunis v. Odegaard (416 US 312 ).
Although Colbert makes light of Fisher’s circumstances, the important question about affirmative action is no laughing matter. Assuming that the Court will decide this case, it will be another example of the flexibility of criteria for justiciability when pressing policy issues are addressed by the Court.
 See, for example, Roger Clegg, Thoughts on the oral argument in Fisher v. University of Texas, SCOTUSblog (Oct. 10, 2012, 7:20 PM), http://www.scotusblog.com/2012/10/thoughts-on-the-oral-argument-in-fisher-v-university-of-texas/; Adam Liptak, “Justices weigh race as factor at universities,” New York Times (Oct. 10, 2012), http://www.nytimes.com/2012/10/11/us/a-changed-court-revisits-affirmative-action-in-college-admissions.html?pagewanted=all, (accessed 10/11/2012); “Supreme Court justices cast doubt on Texas program that looks at race in college admissions,” Washington Post, (10/10/2012), http://www.washingtonpost.com/politics/supreme-court-hears-arguments-over-texas-program-that-looks-at-race-in-college-admissions/2012/10/10/facd81bc-12a8-11e2-9a39-1f5a7f6fe945_story.html (accessed 10/16/2012).
 Oral transcript, http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-345.pdf,p. 3 at 24.
 “The Colbert Report,” aired Oct. 16, 2012; http://www.colbertnation.com/the-colbert-report-videos/420234/october-16-2012/affirmative-action-supreme-court-case (accessed 10/19/2012.