But Solicitor General Theodore B. Olson, who spoke for 10 minutes in each case on behalf of the U.S. Government, repeatedly referred to Michigan’s law school and undergraduate policies as “a thinly disguised quota.”

Maureen E. Mahoney, the attorney for University of Michigan Law School, and John Payton, the attorney for Michigan’s undergraduate program, rejected the notion of the school’s policies as quotas, and instead spent the majority of their arguments describing the need for racial preferences.

Mahoney explicitly referred to Harvard’s plan as a model plan without a quota, and then compared it to Michigan’s law school policy of considering race as one factor in admissions.

Mahoney said that to achieve diversity, “a plan like the Harvard plan...can be used as an effective means [to ensure diversity].”

But when Ginsburg later referred to Harvard’s admissions policy, Justice Antonin Scalia dismissed the idea of Harvard’s policy as a model.

“Did the Court know that when the Harvard plan was originally adopted, its purpose was to achieve diversity by reducing the number of Jewish students from New York that were getting into Harvard on the basis of merit alone?” Scalia asked.

Scalia was referring to evidence that in the early 20th century, Harvard used a quota system to restrict the admission of Jewish students, according to Climenko Professor of Law Charles J. Ogletree, who attended yesterday’s oral arguments. But Ogletree said that Scalia’s comment had little relevance to arguments today.

“The plan Harvard has talked about is quite the contrary,” he said. “It is a plan designed to promote diversity of all points of view and to create a strong class of students.”

The Heart of the Matter

Justices spent the first half-hour of oral arguments discussing a friend-of-the-court brief submitted by former high-ranking U.S. military officers and heads of military academies supporting affirmative action, in sharp contrast to the brief against race-conscious programs submitted by the Bush Administration.

The military brief claims that “a highly qualified, racially diverse officer corps educated and trained to command our nation’s racially diverse enlisted ranks is essential to the military’s ability to fulfill its principal mission to provide national security.”

Ogletree described the discussion regarding the need for diversity in the military as “the most interesting line of questions.”

He also noted that despite their references to the military brief, the justices paid little attention to President Bush’s race-neutral plan for universities to admit the top 10 percent of each high school class in the state.

“They did not seem to embrace the Bush Administration’s claim that the 10 percent [plan] was able to [produce] the same goals as Bakke,” Ogletree said. “No justice seemed interested in it.”

The key legal issues in the case, at the core of many of the justices’ later questions—involved whether the state of Michigan has a “compelling interest” to consider race in admissions in order to attain diversity.