The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  Anti–affirmative action activists viewed the Michigan decisions as a “total defeat,” and some in the movement said it would take a future and different Supreme Court to put teeth into the scrutiny of race-conscious programs that the Constitution demanded.

  With the Michigan cases decided, the Louisville and Seattle lawsuits moved forward in the federal courts. In December 2003, federal Judge Heyburn held the trial in the Louisville lawsuit. That same month, the PICS parents, having lost in the Washington Supreme Court, went back to the same three-judge, federal appellate panel that had ruled in their favor more than a year earlier.

  Judge Heyburn, relying on the Michigan decisions, ruled against Crystal Meredith in late June 2004. The school board, he said, “meets the compelling interest requirement because it has articulated some of the same reasons for integrated public schools that the Supreme Court upheld in Grutter.” The board, he added, also identified other compelling interests and benefits of integrated schools, such as improved student education and community support for public schools. The student assignment plan also was mostly narrowly tailored, wrote the judge. “Its broad racial guidelines do not constitute a quota. The Board avoids the use of race in predominant and unnecessary ways that unduly harm members of a particular racial group.”

  Meredith’s attorney, Teddy Gordon, promptly filed an appeal with the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio.

  Over on the west coast, a month later, the three-judge panel in the Seattle lawsuit again ruled 2–1 against the school district, holding that use of the race tiebreaker violated the equal protection clause of the Fourteenth Amendment because it was not narrowly tailored to achieve the benefits of diversity. The school district sought review by the full Ninth Circuit and eleven judges on that court agreed to hear the case.

  Both the Louisville and Seattle challenges were now on parallel tracks, and rapidly closing in on the Roberts Court, which itself was about to undergo dramatic change.

  • • •

  In June 2005, the two federal appellate courts, separated by roughly 2,000 miles, heard arguments in the Louisville and Seattle appeals. As all parties waited for the decisions, Justice O’Connor made the announcement that rocked the legal and political worlds. On July 1, she said she would retire from the Supreme Court.

  Gordon, representing Crystal Meredith, recalled in a later interview how thrilled he was by the O’Connor announcement. He told the Louisville Magazine in 2009, “I have this cliché that I say: Never underestimate the power of divine intervention.”8

  His elation at the news was based on two assumptions held by many at the time: one, that O’Connor, who had upheld the race-conscious admissions policy at the University of Michigan Law School, would be sympathetic to the school district’s assignment policy if the Louisville case went to the Supreme Court, as seemed likely; and two, that President George W. Bush probably would nominate someone more solidly and reliably conservative than O’Connor, who had disappointed and frustrated the most conservative elements of the Republican Party.

  One thing was true: O’Connor, through her position as the Court’s center, had been the critical fifth vote for the victories—few though they were—of the moderate-liberal wing of the Court in abortion, church-state, campaign finance, race, and death penalty issues.

  Justice Anthony Kennedy would assume the center position in most of the closely decided cases. More conservative than O’Connor, he would swing to the left less often. The real question, however, was who would replace O’Connor.

  President Bush answered that question by nominating John Roberts. Two days later, the federal appellate court considering the Louisville school case ruled in favor of the school district in a brief, unsigned opinion affirming Judge Heyburn’s decision. Gordon filed a motion for a rehearing.

  Louisville’s counterparts in Seattle still had no word on their case from the Ninth Circuit.

  Throughout the summer of 2005, the White House, Senate Judiciary Committee Democrats and Republicans, and special interest groups across the political spectrum geared up for hearings on Roberts’s nomination. On August 29, Hurricane Katrina struck the Gulf Coast—the deadliest hurricane since 1928 and one of the five most destructive in American history. And on September 3, Chief Justice William H. Rehnquist died.

  President Bush withdrew Roberts’s nomination as O’Connor’s successor and nominated him as chief justice. The Senate Judiciary Committee held hearings the week of September 12, and the Senate voted to confirm Roberts, 50, as the seventeenth chief justice of the United States on September 29, by a vote of 78–22. He was the youngest chief justice since John Marshall took the bench in 1801 at the age of forty-five.

  CHAPTER 4

  “I didn’t factor in Alito.”

  —Michael Madden, attorney for the Seattle School District, 2011

  A challenge to a school district’s integration plan already was waiting for the justices’ first look when the 2005–06 term opened, but it was not the Seattle or Louisville plan.

  Over the past two decades, the city of Lynn, Massachusetts, had experienced a dramatic demographic shift. The city’s white population declined from 93 percent to 63 percent. That increased residential segregation. By the late 1980s, nearly half of the city’s eighteen elementary schools had greater than 90 percent non-white enrollment, and racial tension in the city was rising.1

  The Lynn School Committee developed a voluntary, neighborhood-centered school choice plan with two goals: desegregation and diversity. The committee defined an elementary school as “racially balanced” if it had between 43 percent and 73 percent non-white students and between 48 percent and 68 percent for all other public schools. A school was “racially imbalanced” if the non-white student population was above those ranges; and if below, the school was considered “racially isolated.”

  Students initially were assigned to schools in their neighborhoods. Race came into play when students or parents asked for a transfer from their local school. Any student could transfer between racially balanced schools. A student could transfer to or from a racially imbalanced or isolated school if the transfer would have a “desegregative” effect, but not if the transfer further segregated the racially imbalanced or isolated school.

  In 1999, the same year that Seattle’s Kathleen Brose and her group were fighting with their school board, a group of parents sued the Lynn School Committee. They charged that the race-based transfer system violated the Fourteenth Amendment’s equal protection clause.

  A federal district judge upheld the transfer policy, ruling: “The value of a diverse classroom setting at these ages does not inhere in the range of perspectives and experience that students can offer in discussions; rather, diversity is valuable because it enables students to learn racial tolerance by building cross-racial relationships.” The parent group appealed and the full U.S. Court of Appeals for the First Circuit affirmed the district judge’s decision, holding that racial diversity was as compelling an interest in grades K–12 as the U.S. Supreme Court had found viewpoint diversity to be in higher education in the Michigan University cases. The court explained that in higher education, the emphasis is on the exchange of ideas, while the emphasis in primary education is on fostering interracial cooperation.

  Chief Judge Michael Boudin, concurring in the decision, said that race-based classifications are usually unconstitutional, but, he added, the “Lynn plan is far from the original evils at which the Fourteenth Amendment was addressed.” A dissenting judge, however, said the use of race in the school plan was more mechanical and less flexible than the admissions policy that the Supreme Court struck down in one of the two Michigan cases.

  The losing parent group filed a petition for certiorari (a petition seeking review of the appellate court’s ruling) in the Supreme Court on September 12, 2005. Sharon Browne of the Pacific Legal Foundation, who was also aiding the challengers to the Seattle and Louisville plans, filed an amicus brief supporting the group’s
appeal to the justices.

  The justices scheduled their first discussion of the Massachusetts petition at their Friday, December 2 conference. Three days later, they denied review, without comment.

  The votes of four justices are required in order to grant review of a petition. For unstated reasons, the Court, which included Justice O’Connor, author of the Grutter decision upholding the race-conscious admissions policy at the University of Michigan Law School, did not have four votes. Or, the Court may have had four votes to hear the Lynn challenge, but not the five votes ultimately needed for a majority decision in the case.

  “When you don’t have all the votes to overturn a race-based plan, maybe it was just as well Lynn wasn’t the case to take,” said Sharon Browne, who believed the Lynn plan was unconstitutional.2 The Court’s decision not to take a case is no reflection on the merits of the appeal. It simply leaves the lower court’s decision in place.

  A little more than a month before the Court acted on the Lynn petition, the wait for final word from the appellate courts in the Louisville and Seattle cases ended. The Sixth Circuit rejected Crystal Meredith’s motion for a rehearing and left in place its rather perfunctory approval of the Louisville school assignment plan. The Ninth Circuit handed the Seattle School District a hard-fought victory. Unlike the Sixth Circuit, the eleven judges on the Ninth Circuit, voting 7–4, issued lengthy majority and dissenting opinions.

  The Ninth Circuit majority, applying the Supreme Court’s Grutter decision involving the race-conscious admissions policy at the University of Michigan Law School, concluded that the Seattle School District had a compelling interest in “securing the educational and social benefits of racial (and ethnic) diversity, and in ameliorating racial isolation or concentration in its high schools by ensuring its assignments do not simply replicate Seattle’s segregated housing patterns.”

  The plan also was narrowly tailored to achieve its goal, according to the court. “In sum, because (1) the District is entitled to assign all students to any of its schools, (2) no student is entitled to attend any specific school and (3) the tiebreaker does not uniformly benefit any race or group of individuals to the detriment of another, the tiebreaker does not unduly harm any students in the District.”

  One of the court’s most conservative judges, Alex Kozinski, surprisingly agreed that the plan was constitutional. He would not even have subjected the plan to strict scrutiny—the most searching examination under the Constitution—as the majority did. He said the plan did not suffer from any of the defects that other racial classifications by the government suffered.

  “Through their elected officials, the people of Seattle have adopted a plan that emphasizes school choice, yet tempers such choice somewhat in order to ensure that the schools reflect the city’s population,” he wrote. “Such stirring of the melting pot strikes me as eminently sensible.”

  Kozinski wrote that he hoped when the Supreme Court reviewed the Seattle plan or one like it, the justices would seriously consider not applying strict—“and almost deadly”—scrutiny. “Not only does a plan that promotes the mixing of the races deserve support rather than suspicion and hostility from the judiciary, but there is much to be said for returning primacy on matters of educational policy to local officials.”

  Judge Carlos Bea was not convinced. In his dissent, he called the Seattle plan “simple racial balancing, which the Equal Protection Clause forbids.”

  The only option remaining for the challengers to the Seattle and Louisville plans was to file a petition for review with the Supreme Court.

  But when the Supreme Court in early December rejected the Lynn, Massachusetts, appeal, Michael Madden, attorney for the Seattle School District, thought, “naively,” that his opponents might not file a petition.

  “I thought, hmmm, Lynn was a better Supreme Court case because it came up after a trial. It had a more complete record than ours,” he said later. “Our case was very stale and had an obvious mootness issue—the tiebreaker wasn’t being implemented.” He also remembered that the justices had declined to hear a Texas case involving a race-conscious admissions policy because the university had abandoned the policy.

  “I naively thought Harry [Korrell, his opponent] might not waste his money [filing a petition]; or if he did, there was no reason to believe a different result. I didn’t factor in Alito.”3

  As the lawyers in the Seattle and Louisville school cases pondered their next moves, Samuel Alito Jr. prepared for the Senate Judiciary Committee hearing on his nomination to succeed Justice Sandra Day O’Connor on the Supreme Court.

  While the Court, with O’Connor, worked through its docket that fall, the Senate hearings on Alito’s nomination were getting closer. Although President Bush had nominated Alito at the end of October 2005, Senate Judiciary chairman Arlen Specter said his committee needed time to comb through the large volume of work produced by Alito while on the federal appellate court. Unlike Roberts, who had written forty-nine opinions as an appellate judge during just two years on the District of Columbia Circuit court, Alito had spent fifteen years on the Third Circuit court and had written more than three hundred opinions.

  Less than four months after the confirmation of John Roberts, the Judiciary Committee on January 9, 2006, opened its hearings into the nomination of Samuel Alito Jr. This time, however, Alito would endure more contentious questioning than Roberts did. This time the stakes were higher.

  Senator Richard Durbin, Democrat from Illinois, described those high stakes before Alito even had the opportunity to make the traditional opening statement to the committee:

  “You have heard time and again from my colleagues why this seat on the Supreme Court means so much. They have quoted the statistics of 193 5–4 decisions, where Sandra Day O’Connor was the deciding vote in 148 of those instances. She was a critical vote in issues of civil rights, human rights, workers’ rights, women’s rights, restraining the power of an overreaching President.

  “If you look at the record, the enviable record which Sandra Day O’Connor has written, you find she was the fifth and decisive vote to safeguard Americans’ right to privacy, to require courtrooms to grant access to the disabled, to allow the Federal Government to pass laws to protect the environment, to preserve the right of universities to use affirmative action, to ban the execution of children in America. And Justice O’Connor was the fifth vote to uphold the time-honored principle, which bears repeating, of separation of church and state . . . . We believe, many of us, that the decision on filling this vacancy is going to tip the scales of justice on the Supreme Court one way or the other.”4

  The physical contrast between Roberts, the private school–educated son of a midwestern steel executive, and Alito, the New Jersey public school–educated son of an Italian immigrant, could not have been greater. At his hearings, Roberts had looked trim, rested, youthful, and well dressed, and was polished in his delivery of answers to the questions—evidence of his experience as one of the preeminent appellate lawyers before the Supreme Court when he was in private practice. Alito appeared somewhat rumpled and he slouched slightly in his chair at the witness table. He answered often pointed questions in a dispassionate manner, never flustered or impatient. Despite the visible differences, he showed the same command of the law as Roberts did. Both men were products of Ivy League law schools: Roberts of Harvard; Alito of Yale.

  By the end of three days and nearly eighteen hours of questioning, the committee’s Republican staff had compiled an informal tally of the questions: senators asked more than a hundred questions about abortion and one hundred twenty about presidential powers. There were also questions—but fewer—about race, women, disability rights, and voting rights. In all, Alito fielded more than seven hundred questions over the three days.

  The focus on abortion stemmed not only from fears by Democrats and liberal groups that, with O’Connor off the Court, the landmark Roe v. Wade would be in even greater peril of being overruled. It also arose because of state
ments made by Alito in memos when he was a young lawyer in the Reagan administration—like Roberts—as well as in some of his judicial opinions.

  In a job application to Attorney General Edwin Meese in 1985, when Alito was an assistant to the solicitor general in the Department of Justice, Alito, who was seeking a promotion at the time, wrote that he was “particularly proud” of efforts he had made in cases before the Supreme Court in which the administration argued that racial and ethnic quotas were unconstitutional, and that “the Constitution does not protect a right to an abortion.” He said those were positions “I personally believe very strongly.”

  As an appellate judge, he had dissented in a case in which his colleagues struck down Pennsylvania abortion restrictions, including one requiring married women to notify their husbands before getting an abortion. But in two other cases, he voted to strike down abortion restrictions.

  During committee questioning, Alito repeatedly said Roe v. Wade was entitled to respect as a precedent of the Supreme Court, but, unlike Roberts, he refused to call it “settled law.” He conceded only that when a precedent is reaffirmed, “that strengthens the precedent,” and “special justification” would be required to overrule a precedent.

  He also had written in his application to Meese that his interest in constitutional law was motivated largely by his disagreement with rulings by the Supreme Court under Chief Justice Earl Warren, particularly rulings dealing with “criminal procedure, the establishment clause and reapportionment.” That too triggered alarm bells for Democratic senators and liberal special interest groups. The Warren Court produced key rulings that, among others, required Miranda warnings before police questioned suspects, adopted the exclusionary rule for evidence illegally obtained by police, recognized a right to counsel for indigent criminal defendants, established the one-man, one-vote principle, and prohibited organized prayer in the public schools.