Along with that concept, Michigan’s attorneys argued that a “critical mass”—comprising a certain number of minority students whose presence is necessary at a university to make other minority students feel welcome—served a key role in ensuring diversity.

But several justices questioned the meaning of those terms.

“Is 2 percent a critical mass? Four percent? Eight percent? Does it stop being a quota because it [falls] between 8 and 12 percent? Once you use the term critical mass, you’re into quota-land,” Scalia said.

Ginsburg remarked that she first became familiar with the term in relation to the recruiting of females for law school.

Payton, one of the Michigan attorneys, said a critical mass is not a specific number, but something determined on a case-by-case basis by educators who are in frequent contact with their students.

Citing Harvard

Besides referring to Harvard’s admissions plans, attorneys also cited Harvard studies to support their arguments.

Justice David H. Souter ’61 mentioned a study by former Harvard President Derek C. Bok to challenge Olson’s argument that affirmative action may in fact stigmatize minorities instead of benefitting them.

Bok co-authored a 1998 book—The Shape of the River—defending affirmative action in college admissions to prove what he considers the success of the Bakke decision.

Mahoney mentioned a study conducted by Professor of Education and Social Policy Gary A. Orfield, in which a majority of Harvard and Michigan law students said that “students of different races” provided a “clearly positive element of their educational experience.”

Scalia’s quick remark—“Sure, they’re already in!”—evoked laughter from the courtroom audience.

But Orfield, who participated in yesterday’s rallies in D.C., said the comment was “one of Scalia’s many cheap shots.”

“I was stunned by the hostility of Scalia and [Chief Justice William H.] Rehnquist’s questioning,” Orfield said. “Even the lawyers for the plaintiffs weren’t as hostile as some of the Supreme Court justices.”

Souter also questioned whether percentage plan relies upon the segregation of schools—an issue which the Civil Rights Project, led by Orfield, recently supported in a published study.

Outside the Courtroom