my experience i always think about my counterparts that are still in danger, that are still under threat, especially because of their -- because they are different, because they are not as -- they don't conform with other people expectations. and i hope that the united states will take a stand and will be more active like in holding government and other actors on the ground accountable for their actions and doing something about this. thank you so much. >> thank you. miss murad. nadia. >> [ speaking foreign language ]. >> translator: thank you. and thank you also for all the attendees and witnesses who came here. i wish that we all can work together and stand up together to stop this terrorism.

i would like also for you to recognize our genocide and to bring every single one from the islamic state whether a leader, middle or a soldiers, to bring everyone who committed these crimes to justice. >> we would love to see that. again, thank you very much -- >> mr. chairman, i don't have any more questions. but i just would like certainly to thank all of you. and one of the key takeaways for me here is we talk a lot about the golden rule, treating other people the way we want to be treated. we both have children. our children are out of school. out into the world. but the schools that they went to, there was bullying. there was bullying. and in some cases i remember as a parent was aware of some bullying that was going on actually going to the school and speaking out against it and trying to make sure that did not persist. and i think we were successful.

but i applaud folks of the islamic faith. i really applaud those who are speaking up. in some cases at risk, at real risk to your personal safety. we want to make sure you don't pay any price for that. but that's a matter of real concern. but for the kids who are being bullied because they happen to have a name like elgawhary or hassan or murad i'm concerned about them that they somehow are paying a price as well. and they -- if i were giving them advice it would be to be vocal and brave and speak out against the kind of abuses we see perpetrated by isis. and i think maybe the best protection that they have is to denounce those kind of activities and for the -- it may abe hard thing to ask kids to do. but i think at the end they will be safer and i think ultimately

will feel better about their own situation. thank you. >> thank you, senator carper. again, i want to thank all the witnesses for your testimony, for your courage. you certainly have i think accomplished our goal of laying out a reality, helping us understand this better. we have a long way to go in fully understanding this. the american people do. but you certainly helped that. so again, thank you for your testimony and your courage. the hearing record will remain open for 15 days until july 6th at 5:00 p.m. for the submission of statements and questions for the record. this hearing is adjourned.

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on american history tv on c-span 3 this saturday at 8:00 p.m. eastern on lectures in history -- >> by the end of the 1880s you have a dramatic upsurge, a tremendous surge in veterans' organizations, in the membership in these organizations, and in the statues that they create. >> university of georgia professor scott nesbitt discusses the ongoing debate over confederate war monuments and memorials and how many were the result of campaigns by southern women during the reconstruction era and into the late 19th century. then sunday morning at 10:00 on road to the white house

rewind -- >> back in 1976 mr. carter said trust me. and a lot of people did. and now many of those people are out of work. >> the republican alternative is the biggest tax giveaway in history. they call it reagan kemp roth. a free lunch that americans cannot afford. >> the 1980 republican and democratic conventions with former california governor ronald reagan becoming the gop nominee and president jimmy carter accepting the democratic nomination. on july 1st the smithsonian's national air and space museum will commemorate its 40th anniversary. and sunday at 6:00 p.m. eastern on "american artifacts" -- >> in 1976 we were wrapping up a golden age of human exploration with the apollo missions to the moon, and we were launching into the first golden age of

planetary exploration with the missions of the 1970s to mars and to the outer planets. we're now in another golden age of planetary exploration, particularly on mars. >> we tour the museum with valerie neal, head of the museum's space history department, and learn about the story of human space exploration from the moon to mars. and at 8:00 on "the presidency," james rosebush, former deputy assistant to president reagan and author of the book "true reagan: what made ronald reagan great and why it matters." >> and i've come to see that -- and this relates again to president nixon. that a great leader of character is a person who has the ability to discern the future and lead a people to it and through it. >> for the complete american history tv weekend schedule go to c-span.org.

on thursday the supreme court ruled that blood tests for suspected drunk drivers require a search warrant but that breathalyzer tests do not. justice alito wrote the decision for the 7-1 majority. justice thomas wrote a dissent, arguing that neither sobriety test requires a warrant. here's the oral argument in the case of birchfield versus north dakota from april. it's an hour and 10 minutes. we'll hear argument first this morning in case 141468, birchfield versus north dakota and the related cases. mr. rothfeld? >> thank you, mr. chief justice, and may it please the court. the fundamental problem with the statutes at issue in these three cases is they make it a criminal offense to assert a constitutional right. under laws of north dakota and minnesota a person who is stopped on suspicion of impaired driving is obligated to take a

warrantless chemical test to determine the alcohol content of their blood. the states concede these are searches in the meaning of the fourth amendment. the united states and north dakota appear to recognize that no recognized exception for the warrant requirement applies. nevertheless, a person is authorized to submit to this warrantless search and is committing a criminal offense if he or she does not do so. >> is it correct to say that you concede that the state could revoke the driver's license for refusing to take the test, either blood alcohol or breathalyzer? >> that is not at issue in this case. we haven't taken a position on that. but we don't dispute for purposes of this case that the state could do that. >> let's assume that that is a concession or that we hold that or that's a premise. if the state could impose a civil administrative sanction, why couldn't it also impose a criminal sanction? we have hypotheticals where you

have no more than three days in jail, criminal sanction or three-year suspension. why should there be a difference? >> i think the fundamental distinction that governs the outcome of this case is that between the state taking away a benefit that it didn't have to give you in the first place which is what the court addresses in the unconstitutional cases. what the state is doing is saying by fiat you are subject to a criminal penalty, affirmative criminal pent for asserting a constitutional right. in the case that you're -- >> i think the conditions are just different. i don't think that analytically it's a different proposition. >> i have to disagree with that, your honor, for this reason. i think in the unconstitutional conditions line of cases, what the court has said is the state has given someone a benefit that it did not have to give in the first place. and all the state is doing when it takes the benefit away is saying you're back in the

position you were to begin with. there's no direct penalty attached to what the individual is doing. the court in those cases has said we'll look to see the practical effect of the combination of the benefit and condition to see whether or not the state in reality is trying to do indirectly what it could not do directly, that being the suppression of a constitutional right. in those cases the court will look to say is -- what is the degree of connection between the benefit and the condition. it will look to see the degree of coercion, the state's manipulation of the benefit and condition impose on the individual to surrender a constitutional right. but as the correlate has made very clear in this entire line of cases, what it's trying to do is figure out is the state trying to do indirectly something it could not do directly, which is abdicate a constitutional right. >> one way of looking at what the state is doing is not to criminalize the assertion of a constitutional right but to criminalize reneging on a bargain, and the bargain was we give you a license to drive, and in exchange for that you consent

to a blood alcohol test under certain circumstances. and if you renege on that bargain, then that's what's criminalized. why isn't that a better way of looking at this? >> i think to look at it that way i think that you're sort of in the world of consent. in this case at least there is no suggestion that consent of that sort was present. but in this case there is no reason to believe that the defendants had any idea that they were agreeing to the bargain that you describe. >> under justice alito's -- suppose for every driver's license you had to sign a consent form, i consent to take a breathalyzer test in the event an officer has grounds to require it. >> let me answer that question in two parts, your honor. first as to what's going on in this case where there is nothing like that on the floor, what's happening here the way these statutes operate if you drive on the roads in north dakota or minnesota you are automatically

irrevocably subject to the state's -- >> i'm testing justice alito's question. suppose there's real consent. >> then the analysis would be -- not the analysis in this case but a consent -- >> it's real in that everybody had to sign this form. >> i'm assuming they're going to stop everybody at the border. someone who listens from that particular state who hasn't signed anything is still subject to the same criminal penalty. >> that's my next question. but let's talk about just the state. >> and that is the reality of this. but i think as i say the analysis there would be not the analysis in this case but a consent analysis. and i think it would be the state's obligation to show on the totality of the circumstances that the consent to permit the search and therefore to subject yourself to the conditions is truly voluntary, that is, the product of the defendant's choice, that it was not the product of coercion. >> especially north dakota you

have to drive in order to -- so we know that consent is fictional in that sense. but suppose that it was voluntary and explained and so forth. it still seems to me you'd have an argument that it's coerced. >> i think that's right. as i say, the analysis would be a consent analysis under schnecklaw. one of the key points is coercion. if someone was told you cannot drive particularly in a rural state like north dakota but certainly there. something that is absolutely essential to daily life. that would be grounded in the fourth amendment. because the -- >> the right people have to drive. i thought you were just postulating something, saying -- i mean, you're saying the states could not take away that right. >> no. i apologize, your honor. that's not what i meant to say. what i'm saying is if the submission, as justice kennedy

hypothesizes, is people are told and actually are aware that they're being told that if they drive they are consenting to be searched, they're consenting to submit to the chemical test. i think whether the state can then execute on that depends on whether or not there is consent. >> but i thought you said, well, of course there's coercion because you can't survive in north dakota without a car, which i'm happy to postulate. but what is the basis for that right? >> i think that's not a right that's grounded in the constituti constitution. the relevance of that is there would be coercion within schneckloff, within the voluntary consent. >> so for purposes of analyzing this case we have to assume that states could prohibit people from driving, period. >> i think that's right. >> as far as the border goes, i understand stopping people at the border. but what if there's a sign on

the border that says anyone who uses the state's roads con sents to blood alcohol test field goal they're pulled over? >> again, that would not be this case because in this case there is no suggestion that these defendants had any idea that these statutes -- let alone that they were voluntarily surrendering their right to assert the fourth amendment. but in the hypothetical that you suggest i think it would be a difficult case for the state to make because the state's obligation would have to be carry the burden of showing that the defendant actually voluntarily surrendered the right to resist. >> is it true that the state could prohibit driving altogether without a reason? >> well, i sort of conceded that to the chief justice. that's not an issue in our case. if the state con do that, then that makes their case even weaker. they could not then condition -- they would not have a benefit that they could withdraw. >> suppose the reason would be that the issue we're talking about, all the traffic deaths. right? i mean, obviously it's not a

realistic contention, but that's a lot of the hypotheticals aren't. i'm trying to get to the basis of it seems to me that the flexibility that a state has in this situation depends upon what rights the motorist has. and i understand the fourth amendment argument. but it does seem to me that you're making an unconstitutional conditions argument. it is pertinent to determine what authority the state has in any event. >> that's right. let me be very clear. i think there were two points that are krushlt. one is we're not making an unconstitutional conditions argument. we're saying what the state is doing is a direct assertion of direct imposition of criminal penalties on people who assert their fourth amendment rights. this is nothing to do with a condition. because as i say, these defendants are not shown to be aware that they were subject to a condition at all. >> but we're interested in other possibilities. and so if you assume that a state can condition to drive on

the state's roads, and let's assume this is not something who's crossing the border. assume the state can condition the ability to drive on the state's roads on consent iing ta blood alcohol test, perhaps under certain circumstances, let's say this is done in writing at the time the person applies for the license, so it's not just implied. why does that -- what is different about that situation from a number of other situations that i can think of. for example, conditioning a license to operate an interstate passenger train on submitting to a blood alcohol test in the event of reasonable suspicion the person is operating the fran under the influence of alcohol or the same thing with somebody who is operating aircraft. or suppose there were a law that

said that if you want to enter certain government buildings such as this building the condition of entering is consenting to a search and you have to sign something. you have to go through the magnetometer. and then if the person got through that and there was reasonable suspicion the person had smuggled in some kind of a weapon, the person would be subjected to a search. what would be the difference between that situation and this situation? >> i think there would be a number of distinctions. one is at least in some of the hypotheticals that you offer, the train hypothetical, for example, that's the skinner case. there is a special needs exception to the requirement that applies. there is no ability on the part of the individual to resist the search. there is no warrantless -- there's no requirement for a warrant in the first place. i think entering the government building -- >> in those cases don't you just lose the benefit in you don't come into the building. >> that's correct.

>> you lose your job. >> again, let's be clear on what the doctrine is. i think in the skinner situation there simply is no fourth amendment right. so we're not sort of in the benefits and conditions world. we're simply saying you have no right to resist the search. and i think that's true entering the building as well. i think otherwise -- >> but if you say that, and i recognize there's some circularity in both positions here. when you say oh, in skinner there was no constitutional right because you can take the right away, that's what the government's going to argue. it doesn't seem to me to help us. >> again, i think i would look at it differently, your honor. i think that what's happening in a case like skinner is the court is addressing the substantive scope of the fourth amendment. it's saying that in the circumstances of this search is there a requirement for a warrant. >> suppose we said this is like skinner, if the chief justice asked about statistics, suppose

there was a compelling showing that there was a measurable increase in traffic fatalities if this was not in force, we would say this is a special condition and therefore you must consent and the bottom line is and that means there's no constitutional right because we just said there's no constitutional right. >> well, that i think, your honor, would be creating a new exception to the fourth meantime. it's not a conditions analysis. it's an important point. i think what was happening in skinner is the court -- that line of cases, skinner and vernonia and van rob, the court is saying we're looking at the circumstances, the individual's right to privacy, whether or not there is discretion on the part of law enforcement officer to decide whether or not to execute the search. all those things go into special needs. and the court said in these special needs situations there is no fourth amendment -- i find the ordinary fourth amendment principles, there is no fourth amendment entitlements. >> i thought that was the whole thrust of justice alito's question. why can't we say this is special needs? let's assume the statistics are

compelling. we're talking about innocent lives. just as we were in skinner. >> i think the analysis there is do we look to the basic fourth amendment characteristics that go into whether a search is required. in mcneily the court addressed that very question. the court addressed the argument that the nation's impaired driving problem is so severe, so compelling that we can disregard the warrant requirement. and the court rejected that. i think no member of the court accepted that as a principle in mcneily. >> i'm not sure that's different in this case. in the railroad case i think what we're saying is the need for safe transportation on the trains, protect the innocent people there, is compelling enough that it falls within the special needs exception. again, i'm not sure why that analysis wouldn't apply here.

i don't know. i suspect more people die from drunk driving accidents than from train accidents. and so the special need would seem to be just as compelling. >> but i think that was not the rationale in skinner. certainly not the entire rationale. i think the principal reason for saying there was no warrant requirement there and the court said not just that there was no warrant requirement but that there was no probable cause requirement, that there could be a search suspicion at all. no one's suggesting that was -- i think the reason the court came to that conclusion both in skinner and van rob and vernonia and those cases is the whole range of characteristics that there was no discretion as i said on the part of law enforcement officers to decide who to search, that there were a variety of things that had nothing to do with ordinary criminal process. these were not criminal investigations at all. and the court has said time and again that in ordinary law enforcement circumstance where a

search is being conducted that a warrant is required. that is the presumption. >> there's a presumption. but there are many ways of analyzing this case. so let me try to get you to focus on one that doesn't have to do with consent or any of these differences that you -- many of them that you've been discussing. one way to analyze it is you just ask is it -- there is no such thing as an exception to the fourth amendment. the question is whether the fourth amendment requires a warrant in these circumstances. and it seems to me if it does then you win. and if it doesn't then the state has considerable freedom. it couldn't boil people in oil. but it might be able to do this. all right. so that's what i'm thinking. the question is, and i don't find this very much in the briefs, and it surprises me. that's what i want you to address. why isn't there a big difference between a blood test and a

breathalyzer? i mean, look, i look at a breathalyzer. it's a little box the size of a cell phone. it has a little straw on the end. and you breathe into it. and what you breathe into it is carbon dioxide, which is going to go into the environment anyway. you're not going to keep it. and moreover, it takes place quickly so the evidence hasn't disappeared. a blood test you have to go somewhere else. there is risk involved. time elapses, so you lose some of the evidence, and it's painful in some instances. so i immediately think, isn't there a difference? so encapsulated in what i'm saying is what is wrong with a breathalyzer test when it can save lives lots of lives and is given to those people where there is probable cause i take it or at least reasonable decision to think they're drunk. it will clear the innocent.

it will inculpate the guilty. very little interference. but a blood test, that might be a different thing. okay. i'd appreciate what your response is to that line of thought. >> and i will do that, your honor. to begin with i think your pref tri statement is quite correct, that if a warrant is required here we win. if a warrant is not required then the state has considerably more leeway on to what it can do. on the breath test, breath test is a significant intrusion on personal integrity as the court said in skinner. the -- first of all, there is no question that the breath test is a search in the meaning of the fourth amendment. that's conceded by my friends on the other side. and the court presumption has been that when there is a search in a law enforcement proceeding a warrant is going to be required unless one of the regular exceptions to the warrant requirement applies. they conceded in the united states versus north dakota that there is no such exception here. >> why can't we say with respect to a breath test that this is a

search incident to arrest? >> i think that it's not a search incident to arrest for the reasons that were stated in the dissenting opinion in the bernard case by justices strauss and page in the minnesota supreme court, which is the court has made very, very clear consistently from chimeno on through riley most recently that the search turns on the existence of one of two considerations. either the search is necessary to preserve officer safety or to preserve evidence. >> well, i think this would be based on the notion that it's necessary to preserve evidence. plus the notion which just breyer suggested that this is about as uninvasive as a search can possibly be. and so given those two things together, that it is useful to preserve evidence and that it is extremely uninvasive search that we can assimilate it into the

search incident to arrest doctrine. >> on the preservation of evidence -- the evidence that's being tested here is the blood alcohol level. so alcohol level in the blood. they're simply using breath as a means of doing that. as to that, breath and blood are identical. and so as the court addressed this in mcneily. >> yes, but there's something very different in the level of invasion. and certainly it's appropriate to look at the invasiveness of a search when deciding whether to do a search incident to arrest. i mean, if that weren't true we wouldn't have talked about how much you could get off of a cell phone in riley. if that weren't true we would allow people to do body cavity searches when they do search incident to arrest. so it seems to me that the court can look at the level of invasion incident to a search when deciding whether a particular search comes within the search incident to arrest doctrine and that that might be a way of separating out this category of cases from the ones we were talking about in mcneily. >> let me say two things about

that. first, our sense is that a breath test is in fact a significant intrusion on personal integrity for the reasons the court suggested in the skinner case. when one takes one of these breathalyzer tests, it is not, justice breyer, simply that you're exhaling in the ordinary way and carbon dioxide is dissipated -- >> i didn't say ordinary way. i said you blow hard into a little straw-like thing that's connected with what looks like a cell phone. so using the word significant or not doesn't help me. it is what it is. and the question is why it is so intrusive that the constitution insists on a warrant where that insistence could undermine in many cases the evidence that you are looking for. now, that's a question of several factors. it doesn't just help me to say significant or not significant.

that seems to me the question, not the answer. >> well, as to why we think it is significant as a personal matter, when one takes a breathalyzer test of this kind a tube is inserted into the person's mouth. you have to exhale continuously for an extensive period of time. could be as much as 20 or 25 seconds. and the point of it is to exhale what the court has characterized in skinner as deep lung air. >> what is that to do with it? after all if in fact the person's eyes turn bloodshot when every time he drank four bottles of whiskey, you could look at his eyes and that wouldn't be intrusive at all. i mean, what you're looking for doesn't have much to do with the intrusion. it's the way you're looking for it that's the problem. that's the problem. not that you happen to want to know it for a particular reason. >> you're inserting a tube into a person's mouth to get them to exhale something from deep within their body so it can be tested by the government --

>> excuse me. i know we've assumed that it's only evidentiary. but in my experience police, when they do the road test, do it because they want to confirm that you're in fact drunk. before they take you in and take you off the road they're doing this test as part of the probable cause evaluation. is there enough probable cause to bring you in. there may be independent of it, but sometimes the breath test exonerates people and they go on their merry way. so why are we thinking that it is only evidentiary? i do think the blood test is, by the way. once you've arrested someone, you've decided to take them off the road and the road is now safe from that person.

but -- >> and that is true of the breathlizer too. we're talking here not about preliminary field sobriety screens. we're talking about people who have been arrested or as to whom there is probable cause to believe that they have been driving -- >> as i said, there's probable cause and there's probable cause. >> but these -- >> meaning why can't we view it as just part of the necessity of the stop and suspicion of the stop? >> because i think, again, that the tests we're talking about here ufrnder the laws of both north dakota and minnesota, the officer has the right to give -- >> right. what is the percent of test of breathalyzers that is given by the car and what percent of breathalyzers is given after the person has been arrested and moved to jail or the equivalent? >> well, as i said, the field sobriety test i think that's given in practically every case as an initial screen. >> i'm saying what percent is

which? okay? i'm asking because i'm curious and think that might be relevant. and you may not know. so if you don't know, say you don't know. >> i don't know, your honor. i think to answer that question, how many people who are stopped in a preliminary way are then arrested for suspicion of driving while impaired. and i'm not sure there are statistics anyone has that are available. >> suppose the breathalyzer test was improved, there's better technology so let's suppose that all that's required is to put the breathalyzer a couple of inches -- an inch from the person's mouth and wait for the person to breathe and that would be sufficient to measure blood alcohol. would you say that's a search? >> i think that might not be a search. i think that would be a very different situation. >> so if you compare that to with what has to be done here, what is the big significance -- what is the big difference between those? that you have to put a straw 234 your mouth? >> i would think most people, maybe this is just me, but my suspicion would be that if presented with the possibility of inserting someone into your

mouth and expelling something from deech within your body to be tested by the government, people would find that more intrusive than having an officer look in your backpack. >> that doesn't seem realistic. the reason people don't want to submit to a blood alcohol test is they don't want their blood alcohol measured. it's not that they object so much to blowing into a straw. do you disagree with that? >> well, i think maybe i do, your honor. obviously, people don't want -- people who are stopped on the road don't want to be tested in any respect. there's no question about that. >> that's not true. if you're not drunk you'd be happy to be tested, right? >> i think that's an intrusion too. maybe you'd be happy to be tested and let on your way. >> it's an intrusion when you pat down someone should go probable cause to believe he's committing a crime and you pat him down. which is the worst intrusion? i would get passdown guess pat- more intrusive search than saying would you blow into a straw. and we allow it. >> let me again sort of offer

two points on that. one is the states in their treatment of blood and breath tests as the court described in mcneily, almost uniformly treat breath tests and blood tests identically. and as the courts -- >> that's really my unknown question. why? that's why i started with that. was i really don't know the answer. >> and i think the answer, your honor is people understand the breath test to be -- it's designed to obtain the same evidence, exactly the same evidence as the blood test. and in response to -- >> i guess -- please. go ahead. >> but i think that you're concerned about the dissipation of this evidence. i think as for blood and the breath test, it's exactly the same. >> you write that it's designed to get at the same evidence, and you're right that the dissipation of the evidence works in exactly the same way. but you're suggesting that we should close our eyes to the fact that there's a very significant difference in the degree of invasiveness. even assuming that both of these are searches, which i have to

say i think that that's -- we've held that and so blowing is a search. there's no question about that. but there are searches and then again there are searches. there are more invasive searches and less invasive searches. and i guess my intuitions are that that's an important difference when we think about these questions. >> well, as to the nature of the breath test. and again, i've been addressing this and i'm not sure how much more there is to say about it. but i think that the reality is when a foreign objects is inserted into a person's body and they are asked to expel something from deep within their body to be tested by the government, that on the face of it is an intrusive proposition, something that most people would regard as as the court suggested in skinner, a significant invasion of their personal integrity. >> what about the standard sobriety test? i take it you're not challenging if a police officer said walk a straight line. >> that's right. i think that would not -- certainly would not be a search.

i doubt it would be a seizure. >> even though it's involuntary. the person doesn't want to do it. >> if it's not a search, we're not concerned with fourth amendment limitations. it may be a seizure. and that's something we have not analyzed or thought about. and certainly we're not challenging it. >> it is a seizure if you say to a person, now you walk a straight line and that person is in the control of the police officer at the time. >> i think these are almost all voluntary. the officer asks would you walk a straight line, people do it or attempt to do it. if that's the case, certainly there can be no fourth amendment problem. but those are not -- as i say, they're not challenged here. i think they present an entirely different set of issues. i'm sorry. >> go ahead. >> just to return to justice kagan's point, i think in addition to the particular characteristics of the breath test, which we do think are

personally intrusive, i think it is a fact that the court has always, whenever it has confronted a search, and there is no question these are searches, in an ordinary law enforcement investigation, not in a special needs kind of search, general investigation, the court has said there must be a warrant unless one of the recognized exceptions apply. and the recognized exceptions i think are substantially conceded by the other side, do not apply here. so i think it would be a novelty. >> but i guess the question i asked -- i agree with you that you do need a recognized exception and that we should not feel good about making up new exceptions willy-nilly. the question is why isn't this a search incident to arrest given the various aspects that i've mentioned? the fact that the evidence does dissipate over time, that getting a warrant might interfere with that, and that it's relatively uninvasive. >> if i can answer that question, i think participation for search incident to arrest

purposes, my understanding of that doctrine is one is concerned with the suspect doing something affirmatively to get rid of the evidence, flushing the evidence down the toilet. that is the classic search incident to arrest situation. the court in mcneily made very clear we're not dealing with that. the blood test dissipates at a predictable level. it's going to remain in the body to be tested later on. i don't think that justifies a -- shoehorning this in to the search incident to arrest doctrine. it's simply an entirely different category of threats to evidence as i understand it. >> then why isn't it an affirmative effort to get rid of the evidence because you know the more the interval passes the less likely that the test is going to reveal a level that's over the standard amount. >> i think the evidence suggested in mcneily, which says that there is nothing you can

do -- nothing affirmative you can do to take this evidence and hide it. it's going to be dissipated in a predictable way and it's not in your control to do it. and if the state can test you quickly and breath tests can be very quick, the state will be able to obtain the evidence. if the state gets a warrant, they can do that. and that's what they should do. >> thank you, counsel. p mr. mccarthy? >> mr. chief justice. and may it please the court. the north dakota statute strikes a bargain with individuals wishing to use the public roads conditioning their use thereon on consent to a blood alcohol test if arrested for drienk. the court has said this is a valid bar and the state may impose significant consequences including license revocation and the use of testing in criminal

proceedings. >> what about another bargain if people find texting while driving is becoming an increasing problem and so when you get a license you get implied consent for the officer to look at the texts or whatever they can look at on your cell phone to make sure a minute ago you were texting somebody while driving? would that be acceptable under your rationale? >> i think it's highly doubtful, your honor. i think there's many differences between that and what's going on here. first of all, the interest here is a uniquely compelling interest. >> well, i assume. i don't know what the statistics are going to say. it wouldn't surprise me if there are at least as many accidents caused by people texting while driving as drinking while driving. >> even still your honor, i think this statute, given the history, given the history here, it's a uniquely compelling interest. but on top of that -- >> what do you mean the history? >> the history of the state's battle in combating drunk driving. >> well, there's not that much history for texting because there haven't been iphones around for -- >> certainly, your honor.

nonetheless, there's -- in these cases there's first -- the search only comes up when the driver has been arrested. so there's probable cause to believe this person was driving drunk. so this law is targeted very tightly right there on the people that are causing the problem. >> i don't see that that's a difference with respect to my hypothetical. people swerve in the road because they're texting just like they do when they're intoxicated and they're stopped for doing that. and the officer says let me see your phone. as opposed just like let me see your breath. let me test your breath. let me check the phone. >> again, your honor, i think it is different because there is probable cause. the officer has reason to believe the person has been drinking and driving as opposed to -- >> where does that probable cause come from? >> it comes from the field sobriety test. it comes from doing -- >> he's got to do those before the breathalyzer?

>> not necessarily. i suppose an officer could do a preliminary -- the on-site screening test, breath test before the sobriety test. particularly what happens -- >> that was probable cause. >> the car's been weaving. the alcohol smell -- his speech is slurred. his eyes are red. >> yes. >> this is standard stuff. >> yes. this is all standard -- >> so it's like the chief justice's hypothetical. weaving on the road while you're texting. >> well, even aside from that there's a whole separate set of -- the intrusion is much different as the court indicated most recently in the cell phone case, that there's -- that's separate. one level over. and that's much more intrusive to go into that. and there's not the same interest with the dissipation of the evidence that there is in the case of the drunk driving. not only that, but what's

happening here is the states are really in a terrible bind. the situation here, if states are left only with administrative penalties for refusal then what happens is it creates a loophole in the system that makes it very, very difficult for -- >> you can get a warrant. i mean, you're not left with that. you don't want the administrative expense of calling a magistrate or setting up a system to get a warrant. but it is a very powerful alternative. that's what we say in mcneily. so it's not that you don't have an out. the issue for us is do we dispense with a very important requirement in our law, that before you search particularly the inside of a person with a needle or in an intrusive way that you get a warrant.

i'm not sure why you think you're left with nothing. >> well, your honor, two things. one, we think mcneily's helpful for us. because what the court was concerned about there was forced blood draws over the objection of the s.d. those don't happen in the system. the second part of mcneily is mcneily pointed to these types of statutes, said these are alternatives that don't require forced blood draws -- >> but they only talked about civil consequences, suspend the license. that's directly related to the condition that the license given. but criminal sanctions are a very different thing. in scope and in effect. you're putting someone in jail. you're not taking just their license away. >> criminal penalties are different. we don't dispute that. and that is really just the essence of the question on the table here, given that the court has already endorsed these types

of conditions being imposed on the privilege of driving and is endorsed significant consequences being used as an enforcement mechanism. >> can you say something about what the practical consequences of requiring a warrant for every breathalyzer would be in a state like north dakota? my picture of north dakota is that it's not like new york city. you don't have night court going on all the time. so how many of these tests occur during some period of time and how many magistrates would you have on duty? let's say at 2:00 in the morning to field a request for a warrant. >> well, the first part of my answer is if a warrant was required in every case that would go well beyond what the fourth amendment requires because even in mcneily the court acknowledged that in many cases a warrant won't be required. but in north dakota your honor brings up an interesting point. it's not that there are judges

or magistrates on duty all the time in north dakota. in fact, they're considered what is thereas as on call. so they're not on duty but they're reachable somewhere typically by phone. but it often takes a while. especially in rural jurisdictions. >> how long? what it says in the acdl brief is in wyoming it takes five minutes and in montana it takes 15 minutes. how long duoes it take in north dakota? >> in north dakota in the larger jurisdictions where there's a little quicker process where they use telephonic warrants and the arresting officer can go directly to a magistrate in those systems, my understanding is it typically takes half an hour to an hour. but 2349 smaller jurisdictions where it's more rural where it's oftentimes harder to get somebody on the phone and there the process is different. the officer has to go through a prosecuting attorney first and then to a magistrate. >> why is it harder to get somebody on the phone in rural than in a busy city? >> i think a large -- >> i thought people in the rural

areas were sitting waiting for the phone to call. [ laughter ] >> your honor, i think in large part it's a lack of resources and manpower. there's not as many people available to cover all the times. >> so that excuses you from a constitutional requirement? we're now going to bend the fourth amendment, which i always thought started on the presumption that we favor warrants, we don't disfavor them. but since many jurisdictions seem to manage it, we give a pass to north dakota because it doesn't want to? >> it's not that north dakota's asking for a pass here. there's a couple things here. one again is a warrant is not required in every case. the second thing is that -- >> i think what people are asking me was to try to get some sense of the real world harms here. so let me just ask you to assume something. assume that you actually could put into practice a system which

got you a warrant in 10 or 15 minutes, which many states of a similar kind have done. what then would be your interest in the rule that you're asking us for? >> the interest would be almost the same really because -- and this is the important part here. is that the purpose of the warrant is to authorize a search over the objection of the arrestee. but that's not happening here. the state does not want to undertake those searches because it's a public safety risk not only to the officer and the arrestee but the medical personnel that would be in between them. and this is something -- >> if you assert justice by refusing to comply with the warrant, you can punish someone for obstructing justice. you can get the same outcome as putting them in jail for being drunken and driving. so what is important as the fourth amendment warrant requirement? >> again --

>> if you can't do it in 15 minutes. >> again, it's not that the state is trying to get rid of the warrant requirement. i think it's helpful -- >> what it's trying to do is get evidence of someone, this is a pure law enforcement need. this has nothing to do, necessarily, with the safety of the community, because the person has been taken off the road. and we presume you can suspend their license. so this is something more. >> your honor -- i'm sorry. your honor, this is different. this is something more. but it's not about doing away with the warrant requirement. i respectfully disagree that the suspension of a license and an arrest of a person takes them off the road and makes it not a public safety interest. it's still very much a public safety interest. it requires some explanation here. but the problem here is that the states really cannot effectively, in north dakota in particular, cannot effectively

enforce its drunk driving laws without a penalty for refusal that actually has teeth because the way -- >> that's what we're asking. because if you could get a warrant easily in every case, then i'm struggling to figure out what your interest is in having the kind of law that you have. but maybe i'm just not understanding something. so it really is a question. suppose you could set up a system where somebody could be reached within 10 or 15 minutes, and they would in almost all circumstances give a warrant, and in a couple, say no, i don't think you satisfied the requirements, right? you could do that in 10 or 15 minutes. what would be the problem with just relying on a system like that? >> again, there's two problems. one is that the warrant is not required in every case. so this is going beyond the fourth amendment and putting -- >> i'm asking about your practical needs. and then, you know, we'll figure out what is or isn't consistent with the fourth amendment. your practical needs. >> again, the other point here is that the warrant, the point of the warrant is to authorize

the search over the objection. the state doesn't want to do that. i think it's a step back -- >> i cannot understand that answer. we're struggling for in the weak of the recent cases where we talk about warrants, we find out modern technology allows in some states, both sparsely populated and heavily populated to get a warrant in 15 minutes. and look, the position the states are arguing here is that there has to be -- that a warrant is not necessary. it takes too long. suppose it takes 15 minutes. what then? >> what we're asking for an extraordinary exception here. you're asking for us to make it a crime to exercise what many people think of as a constitutional right. there is some circularity there, and you can point to no case which allows that, but we have to show there's exceptions, a necessity for an exception, and

you're not answering the question whether or not in the wake of the recent decisions in the last three, four years, warrants have been expedited in many cases, and if they have been, why that isn't an answer to your argument? >> there's a couple reasons. one is to require a warrant in the situation, i think would actually require the court -- it would essentially invalidate the statutes of the court upheld, there's no warrant -- >> i don't want -- none of us want an answer in terms of law. we want to know a practical fact. the practical fact is, is it possible that you could get a warrant in 30 seconds, at a button on the cell phone, has a big "w", the policeman presses it, they say what's the problem? you explain it in 15 seconds, they say, i got it. you got your warrant, or there's something unusual and they say no. okay, now, if that were in front of us, it wouldn't take me too

long to decide this case because i would say why don't you use it. you might answer, that's ridiculous. it isn't 30 seconds, it can't be. it isn't five minutes, isn't 15 even in most parts, and it can't be without added expense. or you can say it doesn't make a difference and explain it. i think you would have a hard time with that one, but i want to know what your answer is on the fact. >> on the fact there, is some delay in getting a warrant. that does make a difference here. >> why does it make enough of a difference? >> well, there's a couple reasons. i want to step back because the implication of a fourth amendment is to start of the analysis, not the end of the analysis. we're in the unconstitutional condition contest where there's a bargain here. the state is allowed to impose conditions on the public in this manner. for nearly 100 years, the court has allowed this type of thing as a mechanism to impose conditions. >> it's really just a criminal element that makes it different.

>> you're not answering the question. >> do you know how many breathalyzer tests or blood tests are administered during any period of time in north dakota? >> there's approximately 6,000 of the two, and roughly 50/50 over the course of a year. >> 6,000 a year. >> yes. >> can i ask you a different kind of factual question, which how many of these are done roadside. how many are taken to a police station? when are people taken to a police station? what is the practice? sorry, i -- >> please, answer. >> so the only test that's done on site is the preliminary test, which is not admissible in court. the blood tests are done at a medical facility, either by a doctor or nurse. the breath tests are done at usually a police station or a jail or some place where they have the chemical breath tests. >> thank you, counsel.

>> mr. chief justice, may it please the court. i would like to follow up on some of the questions of the practicality of search warrants in these situations. and having grown up 20 miles from the north dakota border and attending college in the fargo area, i'm very familiar with what the realities are in the rural area. and yes, it may be possible to get a search warrant in every case. but if that's what this court is going to require, in minnesota, we're going to be doing warrants and blood draws in every case. and that is not what this court wants. >> but why? >> because why would i now as a police officer cause any more delay, because there is going to be a delay in getting that search warrant. and why would i delay by taking

someone to the police department because that's where most of these tests are being conducted in minnesota and north dakota. they're not done on the side of the road. >> blood and breath. >> breath. blood, you have to go to the hospital. >> i see the breath part is the part that i don't get here. if you take them to the police station anyway to do the breath test, and it just requires a phone call to get the warrant, what's the problem? >> but why bother? because now i have transported this person to the police station. i then have to get a warrant, and now -- >> phone on the way. >> so let's talk about the rural aspect of minnesota and north dakota. in a lot of these jurisdictions, there's only one officer on duty. i grew up in a town of 2,000, 20 miles from the north dakota border.

there was only ever one officer on duty and that hasn't changed. the other problem is, there's not a hospital located in every jurisdiction in minnesota and north dakota. and for example, in the town that i grew up in, the nearest, the nearest hospital would actually be in fargo, north dakota. >> you can do the breath test then. you don't take them to the test. that's a practical alternative. you have two tests, breath test, blood test. you can choose precinct or hospital. >> if they choose to take the breath test, now, i'm not going to get a warrant to take a breath test. >> why? >> i can't force somebody to blow into the straw. >> right, but you can make it a crime not to. that will force them. okay, so -- we're somehow missing in this argument, i think what people are trying to

figure out, at least me, is if, first, forget the blood test. the blood test is a separate matter in my mind. i'm thinking solely about the breath test. do you -- does the constitution require you to get a warrant before you administer the breath test? other things being equal, the constitution leans in that direction. and so i ask you, why not? and now you've told me all the things that cut against you. you say, well, before we give the breath test, we take them to the station. and so then that seems to take 15 minutes. and in the meantime, why can't you just call the magistrate and at least we have some kind of safeguard against total arbitrary behavior? that's where you are. and so why is that bad for the state? >> and i have to look at our implied consent statute and what that allows and doesn't allow. currently, minnesota's implied consent statute says once i offer a test and they refuse,

we're done. we're done. >> but i don't know how to explain it more clearly. i'm not talking law. i'm talking practical fact. if you're prepared to come back and say to me, you know, if we have to get a warrant, 50% of the drunk drivers are never going to be caught, i'll listen to that. if you come back to me and say, you know, if you say that a warrant is required, it will mean that 400 policemen have to spend ten seconds more than they would otherwise spend on a telephone, i would say, that's a point but not that much of a point. now, you see? i'm trying to get a fact. >> well, and i don't have those type of statistics to answer that question. >> can i ask maybe a different way of asking a similar kind of question. when we decided mcneely, there were two opinions. even the opinion that was the

concurrent or i don't remember whether it was a concurrence or a dissent, but the chief justice's opinion, even that said, and this was with respect to a blood test. but the chief justice's opinion said, look, if there's 20 minutes between the times that you're stopped and the time we can get you to a hospital to get a blood draw, and you can get a warrant in that 20 minutes, then yes, you have to go get a warrant in that 20 minutes. so at the very least, why wouldn't that be the case? you know, if all of these things, i mean, i have to say, when i originally thought about this case, i had in my mind roadside stops. but in all of these cases, you're actually driving these people to a station house. so why can't you get at least what the chief justice said in mcnally, which is okay, if you can get a warrant within that time, you have to get a warrant

within that time? >> and you know, speaking on behalf of minnesota, and it's very clear. minnesota treats, and i don't necessarily disagree with you. minnesota is up here is kind of the alternative argument. minnesota specifically treats blood tests differently than breath tests. we specifically do. and our court has recognized that. so for example, under the implied consent law in minnesota, if you are -- in order to get a blood or urine test, you have to offer both. and so we do treat it differently. in the case, and minnesota treated it differently in the bernard case. it's very clear. and they clearly stated in ruling that they weren't going to address blood or urine. and they will be shortly because there are two cases before them with that issue. >> let's talk just about the breath test.

number one, i'm not sure why they are not roadside, but number two, if you take them to the police station, then you have the question about the warrant. let's talk just about the breath test and the practicalities of adopting the petitioner's position. >> let's assume, i know my colleagues are, as part of this, okay, assume as justice kagan did, that the system could be put in place for a warrant on a breath test, if you're doing it at the precinct. you can do it as you go there. right now, we get dozens of cases where the police oppose, where the police tell the homeowner, we're applying for a warrant. and the homeowner says, well, then i have to do it. and so the number of warrants are much less because of that. because they know they're going to get a warrant.

so if you can put a system in place for a warrant, and you tell the person, if you don't take the warrant, you're going to -- if you don't do the breath test, you're going to be charged with obstruction. what are you losing out? >> what we're really losing out is the enhanced ability. that is the difference between -- >> enhanced ability? >> for a dwi. in both minnesota -- and i'm sure, well, everywhere, enhanced ability with dwi laws. in minnesota, and for example, if i just -- if i can't charge the dwi or refusal and i'm only left with obstruction, i can no longer use that event to enhance any future dwi that same person might commit. >> but you change the laws. you know, it's as if you want us to create an exception to the fourth amendment. a very drastic one.

to give smchb the someone the right to say yay or nay when writing a warrant. you're someone who writes to say aye or nay without a warrant, but we don't permit meme people to say yea or nay when a warrant is present. if they don't apply, there will be obstruction and there will be consequences to obstruction. >> but not the same consequences it would be if it was a dwi or refusal. >> that's because you choose not to penalize obstruction at a higher level. that's your choice. we're now creating an exception to the fourth amendment because of your choice. >> well, it's minnesota's position that a warrant isn't necessary. >> i appreciate that. okay, but i'm assuming, if you can get a warrant. >> justice sotomayor is assuming you're going to lose, so she

wants to know what your reaction is to that. [ laughter ] >> well, i don't like it. i don't like it one bit. thank you. >> thank you, counsel. mr. gershengorn. >> i would like to do three things, first, address the real-world consequences. second, explain why i think a bright line criminal rule is at odds with common sense, u.s. code, and third, explain why it would be a mistake to have a warrant requirement. it's critical not to assume warrants are available 24/7. that is not the case in the real world. the north carolina example is one. what the study did there was compare three jurisdictions that were able to put in a warrant requirement against the nine jurisdictions that have various resources reasons, availability

of judges reasons and other reasons were unable to do it. the experience of the park police in the wake of mcnealy is while they can get the warrants 24/7 in maryland, they have stopped doing blood draws in virginia and d.c. because the magistrates are not available 24/7. even in mcneely itself, where the court listed in a long, long footnote -- >> why in maryland have they been able to and in virginia not? >> for the federal system, it's not a resource constraint. some of it, as the court recognized, is a willingness of the judges to be available 24/7. a matter of priorities in federal court. in the southern district of new york, you may have 24/7 availability for terrorist attacks, but you may not have them for routine drunk driving. even in d.c. and virginia, it's not available 24/7. >> how long does it take -- a person is drunk. he is 10% above the legal limit, whatever that is.

how long does it take for it to dissipate? do you know? >> i don't know -- >> how long before that would register 10% above is now equal to or less than? is there any study -- >> so, statistics, i don't have the exact statistics, your honor. what the court has found is there's significant dissipation, but that you can back calculate, if you get it, but there is a delay in getting a warrant at times. in the maryland case, you can get it as soon as 15 minutes, but a warrant can take as long as a half hour or as long as 90 minutes or two hours. that's page 37 of the study. i think it would be a big mistake for the court to decide because in the mcneely footnote, the court listed 33 states that have electronic warrants which is not the same as 24/7 judicial availability, but that leaves 17 states that don't have it. i really think it is a mistake for the court to decide -- >> but there are more and more every year, aren't there? we're now up to over 40. >> there definitely are more and

more every year, but again, i think that if the court is doing a rule, based on the idea that these warrants are always available, there's a serious risk that once you require that, then the evidence is lost, particularly in a breath test in the jurisdiction where you can't get a warrant. so if i could then turn to the bright line criminal rule that i understand to be the core of petitioner's case, in mcneely, this court said that the state may condition driving on public roads and may require as a condition that a motorist arrested or detained for drunk driving agreed to a bac testing and that the state may impose significant consequences on the subsequence refusal. the question is this, the constitution impose a bright line rule against criminal penalties even when lesser sanctions are insufficient to overcome the natural incentive many drivers will have not to abide by that condition. as a matter of common sense, i don't think that makes sense.

the idea that you can only withdraw a government benefit has major problems. for example, if the condition would extend beyond the term of the benefit, cancelling the benefit does nothing. and the u.s. code reflects that. if i could, your honor, i am subject under 18 usc 7 to a one-year ban when i leave the solicitor general's office for contacting or communicating with the sg's office on an official matter. that is punishable under the law by up to a year in jail. that is the criminal penalty as a condition on my employment. that is not the only situation. it criminalizes contributions by government employees. 42 usc 14135, criminal rises of probationer's refusal to give dna. the idea that there is a bright line between administering the sanctions and criminal sanctions that forces the government to rely only on withdrawal of the benefit is just not the case. that's reflected in this court's case law.

back in 1927 in the stevenson case which is discussed in the brief, that was a situation in which texas had conditions driving on the texas roads, and restricted that by imposing all sorts of permitting requirements. in that era, those were reviewed as unconstitutional. and although the other side identified stevenson as a case that did not have criminal penalties and that was just withdrawing the benefits, we read the case differently. if the courts look at page 260, the texas statute imposed criminal penalties. so again, the idea that the only thing the government can do is withdraw a benefit in the context of an unconstitutional condition and can't go to the core of it, which is to enforce the prohibition makes -- >> i think one of our concerns is driving is so essential for so many people that it's really

different than not being able to work for the solicitor general. >> i take that point, but i think this is critical. what the court said in mcneely, they crossed the bridge in mcneely and in bright line and mackey. and in nevil. what the court has said for 60 years, yes, of course it's different than working in the solicitor general's office, but it's a dangerous activity when you're driving two tons of steel down the road, and the court said you can condition driving. that's a reasonable condition the state can impose. >> a helpful answer, and your time is running up. but i'm going to stop you to ask another question. >> yes. >> is it permissible based on the briefs filed with us for the court to make a distinction between taking a breath test, refusing to take a breath test and refusing to take a blood test? >> certainly it is, your honor. we set forth that in our brief. i do think what this court said in skinner, in your honor's opinion in skinner is that a breath test, the court has never

held that a warrant is required and it should not do so, here. there are no significant privacy interests that we cannot conclude a breath test indicates significant privacy concerns. that makes good sense because the intrusion is much smaller. the amount of information that's revealed is just the alcohol. it's a much narrower set, and it can be done as part of the regular booking process. on that side of the scale, the privacy interests are substantially smaller. >> are those tests often administers roadside? they have been telling us -- i thought they were roadside. >> as a general matter, they're done at the station. there's a preliminary test that can be done at the side of the road that often is not admissible in evidence. there are these so-called bac mobiles, but many jurisdictions are not using those. they're done at the station. but i also would like to follow on your honor's opinion, on your honor's question, that the

warrant requirement is kind of an odd fit in the breath context because, because even with a warrant, generally the warrant, of course, it provides the function of having a neutral magistrate look at the evidence. but generally with a warrant, then the officer can force compliance. that's part of what the warrant allows. that's not possible in the breath context. what this court -- a warrant for a breath analysis can't be -- can't be accomplished without the consent of the breather. you can't force somebody to breathe steadily enough. it's like an extended birthday cake blow-out, candle blow-out. you can't force somebody to do that. so the warrant is kind of an odd fit. >> presumably, there are sanctions for failing to comply with the valid warrant. if the police have a warrant to search your house and you say, i don't care. i'm not going to let you in, i mean, it's subject to criminal sanctions as well. >> it might well be, but i just

can't -- it shows a little bit why the use of the warrant doesn't quite map on the way i think in a usual search context. the other problem you have is because you can't force compliance, you might have another statute later to do it, but because the consequences are not as clear, what it will do is drive the state to the blood testing. which one can force. but that's the very situation that this court recognized in neville and that the states hereof have told you, i think, consistent with neville, is the situation that states don't want to be driven to, to a forced blood draw on a nonconsenting individual. >> and what about that, assuming for argument's sake, if you can take a breathalyzer without a warrant, what need is there for a blood test without a warrant? i mean, why isn't it at a minimum that if you're going to have a blood test, you need a warrant?

>> one difference is that the blood test, if an officer has a suspicion there's other than alcohol at issue, the blood test is critically important. if there are drugs. >> of course, it's important, but it's going to take time. you have to get to the hospital. there are risks involved. it's a more serious intrusion, and so the requirement, as we said, could be pretty minimal. you go during that 15, 20 minutes, he's going to the hospital. get a warrant. nobody is saying they can't do it. the question is whether they have to have a magistrate's approval. that's what my question was. without a win on the breathalyzer, why would you win on the blood test? >> your honor, we win on the blood test because there is no bright line on criminal sanctions and because it's critically important outside the blood context where you need the drug evidence. thank you. >> thank you, counsel. three minutes, mr. rothfeld. >> thank you, mr. chief justice. if i may, i'll make three quick points. two legal and one practical. first, i think given the discussion, not to lose sight of what we think is the fundamental

legal proposition, what's going on in the case, which is north dakota and minnesota, people who drive on the roads are automatically irrevocably lose their fourth amendment right to resist warrantless searches. there's no consent here, no knowledge that's been demonstrated on the part of the defendants. the proposition offered by the government is states can simply attach to any benefit that is provided to individuals the surrender of a constitutional right. whether or not the individuals know they're going to do it. and in the future, a criminal penalty can be attached to the exercise of that constitutional right. that's quite a remarkable proposition. i think the examples that mr. gershengorn offers of criminal penalties that can be attached, there is no first amendment right. there are cases where there are limitations on what the government employees can do, so there would be no constitutional problem there. on practicalities, there is the discussion of how available they are.

if the court reviews the study bit highway safety administration, it'll find to some extent with mcneally that warrant are almost universally available on quick and efficient terms. we demonstrate this is true in a vast majority of cases. there are more states that provide these warrant mechanisms now than when it was decided. as the study shows, virtually all jurisdictions including rural jurisdictions, as justice alito asked about, these are warrant procedures work effectively, that the officers on the field, the magistrates and the judges who handle these cases, the prosecutors almost universally praise the warrant process as something which is effective, that drives down test refusal, that makes confrontations between officers and drivers substantially reduced, and drives up dui convictions. so warrants are a way of addressing this, and as the court said in riley, there answer in a situation like is

simply get a warrant. the third and final point on the question of breath versus blood tests, the court so far as i'm aware has never said once there's a search that's taken place in a law enforcement investigation, that one can cut out certain types of procedures or certain types of evidence that's being sought, presumption is that a warrant should be required. in the skinner case, the court addressed both blood and breath tests. they noted there were differences teen the two. they treated them identically for fourth amendment purposes so they have similar characteristics. they have similar degrees of personal intrusion. i do not think there is any supportable reason for treating them differently for purposes of a warrant. enough for the question, your honor. >> thank you, counsel. case is submitted. >> in another decision handed down on thursday the supreme skourt upheld university of texas's firmtive action

admissions policy. the case of fisher versus university of texas was brought by abigail fisher, a white woman denied admission to the school based on her race. justice anthony kennedy wrote the court's 4-3 majority opinion. the supreme court heard oral argument in the case last december. it's an hour and a half. >> you will hear argument in morning in case 14981. fisher versus the university of texas at austin. before we get started, we will say this is our only case and we intend to grant the parties ten minutes or so of extra time and five minutes. so mr. ryan, no need to rush. >> mr. chief justice, may it please the court and the extra time, i didn't rush up here to

review the fifth circuit's initial decision. seven members of the court reaffirmed that a clear precondition to the u.s. of race they have the ability to satisfy what was called the demanding scrutiny which was articulated. my establishing that she was considered for admission under a system that discriminated on the basis of her race. ms. fisher placed upon ut the burden of proving by evidence of the record that its use of race was first, in pursuit of a compelling constitutional legitimate interest expressed with sufficient clarity and concrete tons allow a reviewing court to determine first that the use of race was a last resort in pursuing the interest to find taking into account reasonably available nonracial alternatives.

>> may i ask, if we didn't have the 10% plan, if that were out of this case, all that were left were the plan, would you then recognize that you had no claim? we have the university of texas added on to the 10% plan and we wipe out the 10% and we have only this plan. >> with respect, i would question the premises of the question because it's not the plan in its entirety. >> i know it's not, but i'm asking a hypothetical. >> i'm saying even in the aapia system it's not that kind of a

plan of shaping a class by individualized one to one comparisons. it's not aimed at a critical mass. it's not a gruder plan in that sense. i think the other part of this is that's not the case before us. when you look at the satisfaction of a compelling interest, you look and ask does my preexisting system satisfy that interest? do i have a need to do something else? if i have a need to do something -- >> assume need was proven. >> i know. you're putting aside need. what's wrong with this plan if need is put aside? >> let's put it this way. we do not oppose the use of the various pai factors that were in place before race was added. what's wrong with this plan apart -- >> no, no, no. i know you're saying they didn't need to do it. i said put it aside and answer

justice ginsburg's question. if they had to use race, how are they using it improperly? >> if you have to use race and you want to use the model that was created in bakke and grutter they would have to judge them in one against another in the class and the con tex actual they were created. >> my god, that sounds more like race than in this case. tex act created. >> my god, that sounds more like race than in this case. t actuae created. >> my god, that sounds more like race than in this caseu actual were created. >> my god, that sounds more like race than in this casea actual were created. >> my god, that sounds more like race than in this casek actual were created. >> my god, that sounds more like race than in this case actual t were created. >> my god, that sounds more like race than in this casel actual were created. >> my god, that sounds more like

race than in this caseactual th were created. they tthey w hey >> i'm sorry if it d it says in the situation of the bakke situation and you're looking at every aspect of an individual and trying to judge if one or another of an individual, the places, the last places would most benefit the class, the class as a whole as a learning entity, as bakke indicates, they have backgrounds with different ideas. >> how is that -- >> this is not the system. this system doesn't do anything like bakke. it's very different, even if you separate it from the necessity issue, which is a major issue in this case. i'm assuming your question they have shown, they needed to use race, there was no other way to do whatever they were trying to do, which isn't clear to me either. you have both the question of whether they've defined a legitimate, compelling interest. you have the question of whether they've shown any necessity to use race. if even i put those aside, whether this is the narrowly tailored vision that came out of bakke is a very serious question. it isn't. it's quite different. >> you still haven't answered why this is worse than bakke. i mean -- >> because it's not used to build a class. it's just used to create a racial plus and to increase the number of minority admissions. it's race as such.

>> how is race given a plus? i thought what they were looking for is leaders in diversity, not just of race but of experiences generally. >> those factors -- >> so how do -- >> i'm sorry. those factors were in the pai before they added race. leadership demonstrated awards and success out of school overcoming obstacles, like a single-parent family. those were all part of the pai before race was added. race was just tacked on, as they said, as a factor of a factor of a factor. the shifted position is how it's used in district court to -- to minemize a factor of a factor of a factor. it's a minor plus. don't worry about it. it's now become -- well, it's a contextualized part of the pas which is part of the pai and we can discretion nairly jack that up any way we want. >> i think your brief admitted this isn't in favor of any

particular race. white people in some situation kes show leadership. as well as black, hispanic, native american. any race could benefit from this plus factor. how is this worse than bakke? >> with respect, we did not concede that. we would not concede it. because the other pai factors might benefit anybody of any race. people's circumstances, their leadership, their community effort. those are universal and they can benefit. they don't benefit from the race factor. >> but in grutter and what justice said would be proper in bakke. race was a factor. race itself was a factor. that's why i'm finding it very hard to distinguish what the

university is doing apart from the 10% plan. it seems like that's driven by one thing only and that seems race is only dependent on having racially segregated neighborhoods, racially segregated schools and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education. >> justice ginsburg, let me respond this way. the top 10% does not address anyone within race. it is only within the texas educational system. >> it can work only in the background. >> when you say work, it works on a number of fronts. it creates geographic diversity, looks all over texas. it doesn't distinguish between high schools. it creates socioeconomic diversity. it does have an effect, demonstrated effect on race

because a number of minorities, the type they care about, are admitted under the top ten program. it's not based on race. it's based on the degree of effort you make relative to the other people with whom you're being -- >> it's created because of race. >> i'm not in a position to tell you why it was created. it was created -- >> is there any doubt it was created to increase the number of minority students? was there any other reason for the 10% plan? >> i've given you other reasons which is it's kind of a democratic recognition you want to invied people from all over texas, regardless of the school they went to. you're looking for those who are trying the hardest, doing the best, who excel in their environment. >> but it was created in the wake of hopwood. so, i think that was the purpose. to define a neutral framework in which to satisfy the state's and university's objective. >> certainly one in the

legislature might have looked at the predictable effect, but that purpose and effect are different. but, yes, it was created. in part, because certain schools do have minorities. the idea was, well, that would benefit those schools. yes, it would benefit a rural high school in a white community which ordinarily would have very great difficulty placing their students in the university of texas. this system -- >> you argue the university of texas' goals are insufficiently concrete. can you give an example of what in your view would be a sufficiently concrete criteria or set of criterion to achieve diversity? >> the solicitor general tried to by breaking down the concrete goals and objectives. one goal that credits respect is if you have studied your campus and you believe there's an inadequate exchange of views,

and minorities feel so isolated they cannot properly bring to bear their perspective on the campus, you can look at measures of how successful are we in this type of dialogue and try to investigate that and try to say, okay, is there a level -- when do we reach a level of critical mass, which is the term in grutter, where that exchange is vibrant and taking place on our campus. that's one measure. >> i don't understand. how do you do that? >> it's not easy to do and it's not our job to do it. we're not here to tell them how to do it. if one were to endeavor to try to find this kind of concrete level, we're not saying quota, but we are saying, you have to -- you, the university, if you want to use this forbidden tool, this odious classification, you have to find a way to do it. you have to be able to explain what your concrete objective is. >> are there any critical mass studies you can refer to?

>> not that i know of. >> a scientific study in which you have suddenly enough of a mass? >> no. >> so, what did the university base it on? >> the university based it on two things. it was short of the demographics of the high school graduating class, which is measurable but not legitimate. and it claimed it was basing it on this classroom, small class study, which they had conducted previously, which indicated minorities were not present to their satisfaction in a lot of small classes. >> wait a second. >> excuse me. >> excuse me. to their satisfaction. i'm asking on what did they base their satisfaction? on what base do they base 15%, 20%? >> they premised it on good faith. and that was accepted in the fifth circuit on the first iteration of this case. and this court says good faith does not suffice. >> i'm sorry. i thought the study they did

showed in 1996, they had more participation in these smaller classes -- i don't know if they're really small when there are between 8 and 25 people, but there were more of those classes in 1996 than in 2003 or '02 when they were looking at that study. it would seem to me that that suggests there was less than they took from it, there is less exchange of ideas in a classroom rather than more, based on this race-neutral policy. >> well, i think -- >> what's wrong -- since you have to infer these things, you can't use a quota. you're saying they can't use demographics. so they use a study that shows there's less classes, there's less people in classes. they talk to administrators,

faculty and students. they're having racial incidents on campus. where students of color are complaining that they feel isolated. that stereotyping is going on on campus. what more do they need? >> let me start with your first concern, which is this classroom study. first thing i would observe about it if i were in their position, and i'm not, is that the second study was done at a time when there were more minorities admitted than the first study and they claimed it went backwards. so, that might tell me right away that the problem -- the necessity of using race could not be demonstrated for that because -- >> yeah, because the necessity is not the necessity you're talking about. as i read it. you use words like critical mass and so forth. it sounds like a cloud of sort of you don't know what you're talking.

but as i read further into it, it becomes quite specific. that is, 75% of the students are at this university because they were in the top 10% of their class. and it doesn't take long before students and faculty, in particular situations, know who is who. 25% of the students in that class are admitted, if they're good students, not in the top 10%, on the bases of leadership, activities, awards, work experience, family's economic status, school status, family responsibility, single-parent home, languages other than english spoken at home, s.a.t. scores and race occasionally, too. we're talking about that 25%.

and it won't take long before students in a class see that in that 25%, which means you aren't just in the top 10% of your class, in that 25%, there's hardly anybody who's african-american or hispanic. and seven years of experience with that kind of thing led the faculty at meetings, administrators and others to say, we should do more to see that that 25% has occasionally somebody who's a minority. does anybody -- that's what their program is. it isn't something like critical mass, et cetera. and if you have to say, it seems to me, why is that not a diversity-related judgment of what is necessary. >> justice, let me answer that. first of all, one thing your question establishes quite clearly is if one assumes premises from evidence that doesn't exist, you can draw a conclusions that are, perhaps, invalid. so, let me go back to where you started. you say these people are admitted on the various pai factors, which you read. that's not how they're admitted.

that pai is only part of the admissions criteria. and it's not holistic because you look at the person as a whole. here you could have the most wonderful pai and never come close to admission because they use the ai independently so they're not admitted. >> every school in the country that's a college that i've ever experienced is a combination of grades, class position and a lot of other things. so, i'm talking about people who aren't admitted, 75% are solely on the basis of class ranking. >> yeah. then you assume people could identify them one from the other. >> i was going to ask that. does anybody except the faculty know who this elite 25% is? >> no. >> and all of the 10% people identify themselves? >> no, they do not. >> do they go around in bunches and say, hey, i'm one of the 10%. >> no. the level to the admission to the university's subgroup in which they study, whether it's

business or communication, there it's all done by aapi. they're all done equally. >> can i come back to this issue of classroom diversity, because this does seem to me to be something that could be measured. maybe there's evidence in the record that measures it. i don't know. that's what i want to ask you. the university knows which students, even assuming the student don't know, the university knows which students were admitted because they were in the top 10% and which were not. presumably, they have a record of all of the students which enrolled in which classes so to me it would be possible to determine whether the students who were admitted under the 10% plan were less likely to choose to enroll in the classes in which minorities are underrepresented than the students who were admitted under holistic review. now, maybe that's in the record. i haven't found it. is there anything in the record

to show that? >> the best of the record, because they didn't study that specifically when they did the classroom study, they did not try to distinguish who was in the class. it was just a number count. by classification. how many minorities of this kind, how many of that kind. they counted african-americans, they counted hispanic students and they counted asians in that study. but they counted them by race. >> i don't want to -- i think we're well into the substantive issues. can i begin with almost a procedural point? did you object to the university's request this be remanded to the supreme court? >> we did in the fifth circuit. >> it seems to me, justice alito's question and, frankly, some other questions have indicated, that the litigants and, frankly, this court have been denied the advantage and

perspective that would be gained if there would be additional fact-finding under the instructions fisher sought to give. we're just arguing the same case. it's as if nothing had happened. >> and the reason -- >> it seems to me that justice alito's question indicates this is the kind of thing we should know but we don't know. >> well, let me point out that the purpose of strict scrutiny is not just to adjudicate. it's to instruct the university that before you use the odious classification, before you employ race, you ought to know these things. if you're going to depend on them, you ought to study them and know that. the failure to do that is not just because they didn't put it in -- >> but they weren't given the chance to add additional evidence in order to meet that standard. >> well, they can't go back and recreate the past. they have put in all the evidence available to them -- >> but they could answer some of

the questions, like the ones justice alito added. and i think it's a very important point. >> they could. i mean, but they have to go back and study the conditions at the time they made the decision. and i think the failure to do that kind of thing indicates that the retreat to race was reflexive, was done on the day grutter came out. >> not only that, it was their burden to put it in, wasn't it? >> yes. >> they're going to say, they failed to put it in, let's give them another chance. do a do-over. send it back in so they can put in, what they should have put in, in order to prevail the first time around. >> i entire agree with that. grutter said strict scrutiny. bakke said strict scrutiny. justice alito, what we found in the record is where the most selective schools were concerned, which would lead you

to the smaller classes, more of the top ten minorities enrolled in that than the added minorities they derived. >> the issue in this case is not whether the university can have holistic review. the issue is whether they can have that as a component of holistic review after they take into account other characteristics not based on race. so, if it were would there be any way of determining, if there were a remand, which of the non-top ten admitees were admitted solely because of race? in other words, these students would not have been admitted taking into account leadership and family education and socioeconomic background and hardship and everything else. >> according to the university of texas' answer to that is no. they cannot make that determination because in their view race is contextual. you cannot sort out those who

could have made it without race to those who did it. in response to justice breyer as fact of record, prior to the indication of race, 15% of the non-top ten admits were -- were the minorities who later benefitted from race. so, it was not devoid of admits who were hispanic or african-american. it was producing 15%, marginal increase out of race, if you try to measure it, was very small. and i could think of reasons for that. so, they couldn't put that in. they denied you could ever identify those students, so it would be a fruitless pursuit, unless they completely change everything they said before. >> could you associate a number with the very small? i guess it would be the number of students who were admitted with the consideration of race who were not also -- >> correct. that would be the measurement. there's no perfect answer to that when the university says, they can't identify them. we looked at the historic period in which they were using the pai without reference to race.

and compared that to the percentage admitted of the total student body of those admits in the period when they were using race and they compare -- it was about a 2.5% difference. it's very small. >> 2.5% difference in entering class numbers or number of minorities admitted. >> number of minorities you can measure either way, by enrollment or admission, it's still going to be a very small number. it's statistically lost, so it's a very small increment. of course, you -- >> the number's important to me. is what -- >> it's under 3 -- >> i can ask your friend on the other side, but -- >> it's under 3%. >> of what? of -- >> of total admits and the total enrollees each. judge garza premised -- >> of the minority students, of blacks -- >> in the class itself. what percentage -- let me be very clear. what you're trying to measure is

to what extent did the use of race boost over the use of the pai in a nonracial basis. >> parents involved we indicated that at some point the actual benefit of the program turns out to be not really worth the very difficult decision to allow race to be considered. if at the end of the day it generates a certain number. i'm trying to figure out what that number is. >> i'm saying that as we said in our briefs and we tried to -- there's no perfect measurement because you don't have them running simultaneously. but if you try to do it by looking at the results, using the pai and not race, the results, both admission/enrollment stage of using the pai affected by race, it's under 3%. and it's -- >> i'm not sure where you get that number. between 2004 and 2007, it nearly doubled from 3.6 of the holistic class to 6.8.

for hispanic students. that's for blacks. it went from 11.6% to 16.9. i don't think that's that small a change. in 2008, 20% of all black students and 15% of all hispanic students were offered admission through holistic review. black and hispanic admission and enrollment rates have increased since 2005. this is on holistic review. the only exception was in 2008 and that was because 92%. class came in under the 10% plan. >> well, you know, when you use numbers on holistic review, that incorporates the ones who would have made it without race. so, it's not a valid comparative number. we tried -- >> the ones who would have made it -- >> without race are incorporated in, quote, holistic review, so those numbers really don't tell

you anything about the effect of race. >> wait a minute. i don't understand how that can be. if the 2004 number was that much lower than the 2007 number, race has to have some input into that. >> it has some effect. that's what u.t. says. they haven't measured. they say they can't measure the effect. you're dealing with different classes. >> could i ask you a different question now. i fear something. i know there is an educational debate on the benefits and costs of a 10% plan. i don't want to get into that debate. but i do have a worry, if you're reading proof of a compelling need or proof of a compelling need, will any holistic review ever survive?

as i'm reading your answer to narrowly tailor, schools have to use nonracial means of doing it. if the 10% plan is the only thing that achieves a greater number in minorities. won't every school have to use a 10% plan? >> we're not certainly trying to dick date tate every school use a 10% plan, nor is it the only way in which you can encourage and increase minority enrollment. so, i don't accept that premise. strict scrutiny is a heavy burden. the purpose of strict scrutiny is to recognize the base -- >> your answer is yes? >> no. >> if there's no other way of doing it, then the other race-neutral way, if offering scholarships with this university did increasing outreach to minority neighborhoods they did and continue to do, there's a list of six or eight other things

they did that didn't increase the admission of minorities. >> there are many other things they can do. we're not trying to tell them how to run it. clearly one of the things they could do, in the pai they recognize, the two essay scores, which is strictly composition, which is culturally biased as you can get. it makes it hard for those that went into a secondary program to excel. they could cut it to two. they could take measures which were aimed at looking at potential deficiencies in initial education because you come from a home where there isn't a college-educated parent and say we will take those further into account because they apply equally without regard to race. there are many things they could do within -- >> that's exactly the question, i think. i can put the same question --

or suppose we do put it back to the district court and put in more evidence, we tell them. suppose we did that. and suppose they start with a basic plan where they want to use race is in the 25% of the holistic area, we want to do that. now, you've seen the chart and i've seen the chart of the factors that are one, two, three, four, five, six, seven, eight, nine, 10, 11, 12. you've seen that chart. i've seen that chart. in the bottom of my list is the word race. it says race, r-a-c-e. what kind of evidence, in your opinion, could they or anyone else with any roughly similar plan put in that would show n your view, that this is constitutional? >> well, i mean, you have the example of justice's opinion in bakke. that says if you're looking at the whole person and comparing

individuals one to another to say who will best suit the educational need of the class, then you take account of a person's race. it's part of the exercise. you don't isolate it because if you look at justice bakke's example, he has a and b, two african-american minorities, and c. he says, depending on where the class stands in this overall composition, you might choose a, vice versa, you might choose b, and sometimes you might choose c, without regard to race. he's looking at it as a way of looking at the totality of a person, all of their achievements, academic and otherwise. so, you -- the bakke systems are not at issue here, nor is the top ten at issue. that was accepted in this case. no one challenged it. i'm saying, you don't have to do the -- >> so, we have one. >> justice breyer, you can achieve this small increment of under 3% in our view, by a number of alternatives that would give this same boost. these are the racially available neutral alternatives. >> i have one.

you're saying you should look at the two folders and as a kind of tie-breaker, use race. that, to you, is okay. now, said there are several others. it would be helpful if you can summarize them in a sentence so i get an idea of what the others are. >> you could give more emphasize to the socioeconomic factors -- >> that's not to use race. i'm saying r-a-c-e, race. i want to know which are the things they could do, in your view, would be okay? i'm really trying to find out. not fatal in fact, we've said, okay? not fatal in fact. okay, fine. what are the things, in your view, they could do so it is not fatal, in fact? >> what i've said, first, they could shape their system more toward the bakke system and move more towards individualized consideration. that's one thing. that's not fatal, in fact, because this court endorsed the view that justice powell took of the harvard system in bakke. that's one. they could expand the top

10. that's another alternative. that's available. they could, as i said, they could rescore some of -- >> the top 10 you said it doesn't use race. justice breyer is asking you -- you say, yes, race, can be a factor. it was a factor in bakke. it was a factor in grutter. so far you're saying now it can be a factor only if what? we're not talking about so-called neutral factors. we're talking about race. >> i mean, the first question is, you know, why are you using it? the why. therefore, it can be a factor. you have to clarify the objective. you have to show the necessity. you have to show if you, as they do, live with and accept over time a very small increment that you can't get it done any other way because race is not the baseline. it's odious classification. that's where we differ. >> if i understand what you're saying, the bakke approach,

comparing two individuals and where they're tied giving a benefit to one for race, that's okay. regardless if there are any other means of achieving the racial balance you're looking for, right? >> well, justice powell indicated in bakke that that approach could be used where it's part of a greater function -- >> understand, understand. >> and the court has apparently accepted. we're not challenging it here. >> you don't have to apply the question whether it could possibly be done in any other way. but you're saying anything beyond that, anything else, you have to establish first that it couldn't be done another way. that doesn't take into account race. such as expanding the top 10% to the top 15%. >> it's not just me, justice scalia. that's what this court said in the prior opinion. >> that's what i thought. >> it has to be shown to be necessary. >> that's true of all strict

scrutiny. the court said in the prior opinion that it's other strict scrutiny opinions were not different. strict scrutiny is a heavy burden. no question about it. that's why it's strict scrutiny. >> is there any evidence that the holistic review being used by u.t. operates as a quota? >> you know, we have not claimed that, but since so much of it is masked and hidden, but certainly if you're motivated, as they said, by demographics, they want to get the number up, it's certainly number-driven. if you look at one thing this court said in grutter is you have to have a basis to use it. there has to be an end. there has to be an end point. if you can't find your objectives, there is no end point. you have to look at, what are they measuring each year? they're looking at numbers. they want the numbers to go up. that's what they care about. that's what this system does.

if it's a quota to the strict sense, to wit, we have a definite target. their target may be equating with the population, high school population. today they're a majority/minority campus in the real world. just because of the demographics. >> because your time is running out, there's one preliminary question i'd like you to address. that is, what is the belief you're seeking? i take it not injunctive because mr. fisher has graduated. >> correct. >> and you have no class. so what specific relief are you seeking in this case. >> the case started with a plea for damages. the damages plea is live. it has never been challenged. >> what dot damages consist of? >> the damages consisted of a refund of the unjustly committed fee for application. that was the direct -- one specified application.

we asked for further relief because at that point in the case we didn't know anything for certain, to wit, if she were admitted, that would be one thing. if she wasn't admitted, there would be other damages arise from her failure to be admitted. we realize that's a separate issue. we reserved on it. >> if the university should say, okay, the application and whatever else we add to that, we offer that so this contest will be over. if they offered you the damages you are seeking, would the case become moot? >> no. and the reason is the damages we are seeking were broader than that. that was a sefk item of damage pleaded. they didn't challenge is under 12-b-6. >> you gave me the application fee. >> now, miss fisher has not been admitted. she has suffered the consequences of nonadmission. which include she went to an alternative university.

she had to travel as opposed to being in her home state. there's certainly good information that within the state of texas, a degree from the university of texas has consequences in earnings down the road and that's measurable. she doesn't have that benefit. all of those elements, which were not part of the case originally because we were trying to enjoin in a way that would have her admitted, now she's not admitted, that changes the complex of the case. that's why we bifurcated -- or reserved the right to amend for a broader plea for the justice and relief. in terms of just standing, we have an existing claim they haven't paid us. they threatened to do that on the first petition for cert. they didn't tender it. we have broader claims because we haven't yet reached the state of litigating remedies and damages. the case continues, unquestioned standing in this case. thank you. >> i suppose if they tender it,

you don't have to accept it either, right? >> correct. >> thank you. >> i'll reserve the rest of my time. >> mr. garre. >> thank you, chief justice. may it please the court to pick up on the questions this morning i would like to focus on three things. one, why the record supports the texas legislature's conclusion in 2009 that the holistic plan at issue was a necessary complement to the state's top 10% law. two, why the record shows that texas' holistic policy has had a meaningful impact on the diversity at university of texas. three, why the record absolutely forecloses any claim that university of texas adopted a quota. with respect to the first question, necessity, there's three principle ways in which the record shows the plan at issue was a necessary complement. first, as justice breyer mentioned, there's a significant portion of the admissions pool, all out of state students, all students from texas high schools that don't rank, some of the

best schools in the state, and all students just below the top 10% who are nevertheless great students who aren't eligible for admission under the top 10% at all.