Strict scrutiny—the level of review a court applies to government actions that use race or other suspect classifications—has often been described as “strict in theory, fatal in fact,” meaning that a court will almost always find the government action unconstitutional. The burden is on the government to demonstrate a compelling need to use the suspect classification and how its use is narrowly tailored to meeting that need. This is a heavy burden, and the government has often failed to meet that burden—hence “fatal in fact.” But it is not always impossible to meet, as evidenced by the rulings in favor of the use of race in admissions in Bakke, Grutter, and most recently, Fisher I.

In this clip, Justice Breyer makes the point that strict scrutiny is not supposed to be “fatal in fact,” and that as long as there’s a need for universities like UT to consider an applicant’s race there should be a way for the school to do it. It’s clear that conservatives think that UT’s current method of considering race is inappropriate, but would anything ever satisfy them? Listen as Justices Breyer, Sotomayor, and Ginsburg challenge Rein on this point, with Rein struggling to not concede that conservatives are indeed on a mission to make any use of race in college admissions—affirmative action—fatal in fact.