The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  “Until the Supreme Court, we did everything, with help from some terrific associates at my firm,” said Korrell. “There wasn’t a lot of [outside] interest. We couldn’t even get an expert to help us for free. The parents had to go out and raise money to have an expert rebut the school district. When we got to the Supreme Court, people started paying attention and were full of suggestions about what we should say.”4

  But Korrell and Ritter shouldered the brief-writing chores, turning for advice, when needed, to their earliest supporters: Sharon Browne of the conservative Pacific Legal Foundation and Roger Clegg of the conservative Center for Equal Opportunity.

  Browne knew that Korrell had an excellent grasp of the legal analysis and so she offered, as additional help, her foundation’s communications department. She had learned from experience that there soon would be a media onslaught, particularly in a case dealing with race and schools. Her department would coach Kathleen Brose—the parent face of the case—on how to handle media questions. And Browne herself took on the task of coordinating groups and individuals who wanted to submit amicus briefs supporting the Seattle challengers.

  One of the “trickiest” legal questions facing Korrell was what to tell the Court about its most recent decision on race in education—the 2003 University of Michigan Law School admissions case: Grutter v. Bollinger. A number of groups believed Grutter was ripe to be overruled and were eager to have the cases push for that result.

  Justice O’Connor had authored the 5–4 Grutter decision, finding that the law school had a compelling educational interest in maintaining a diverse student body. But O’Connor was no longer on the Court, and her successor, Alito, was proving to be more conservative in his voting than she was. Kennedy had dissented in the Grutter case because he felt the majority had failed to apply strict scrutiny—the most exacting judicial examination—to the law school’s use of race which, in his view, looked more like unconstitutional quotas. Chief Justice Roberts’s views, like Alito’s, were unknown, but, after all, both men had been foot soldiers in the anti–affirmative action Reagan administration, according to conventional wisdom. The stars seemed to be aligning in favor of dumping the Grutter precedent.

  The Supreme Court does not have to be asked to overrule a precedent. The validity of a particular precedent in a case is always before the Court. Asking the justices to overturn a prior decision is generally considered a fairly aggressive act.

  Korrell decided not to attack the Grutter decision. “Better to say you win under the controlling case than to say the controlling case is wrong,” he explained. “I wanted to win for my clients. We didn’t have an agenda to undo Grutter.”

  But others obviously did have that agenda. Of the fourteen amicus briefs supporting the Seattle parent group, three urged the Court to overrule Grutter. Those briefs came from Florida governor Jeb Bush, the conservative Mountain States Legal Foundation, and the Project on Fair Representation. The last organization has been, and continues to be, at the forefront of litigation challenging the constitutionality of not only affirmative action but also the most important part of the landmark Voting Rights Act of 1965.

  “I was never convinced these cases were the appropriate vehicle to overturn Grutter,” said Browne in an interview. “What we could do is make sure it was very much contained. That’s what I wanted to do: contain Grutter to the very limited purpose to which it was actually being used—for prestigious law schools where race is going to be used as only one factor for diversity. And then there is the First Amendment factor—universities have academic freedom, the right to decide how to comprise their student bodies. All of these factors are completely missing from elementary and secondary education.”5

  Korrell’s counterpart challenging the Louisville school plan, Teddy Gordon, appeared to have asked the Court to overrule the Grutter decision in his petition for review. Gordon’s petition posed one of the most convoluted questions in recent memory, but on a close reading actually did not ask the justices to undo Grutter. The eccentric Gordon’s ultimate brief on the merits also was memorable. He shocked those inside and outside of the Court by using just eight of his allotted fifty pages to make his legal arguments against the Louisville school plan.

  As she did for Korrell in Seattle, Browne worked to garner amicus support for Gordon. He had hired his own communications firm to deal with media and Browne worked with that firm “to the best of our ability.” She also used her own amicus brief to flesh out the legal arguments against the Louisville school plan.

  “Teddy was a little difficult to deal with, but for some reason he trusted me,” she recalled. In fact, he trusted her to such a degree that he asked her to sit with him at the counsel table when the Louisville case was argued.

  However, inside the Court, justices and clerks were shocked and chagrined at the quality of Gordon’s briefs and his later oral argument. “The quality of advocacy wasn’t what it could have been,” said one former clerk from the term. “It was the same with the oral argument. It’s interesting that such an important case would have that level of advocacy.”

  But sometimes even poor briefs and oral arguments win in spite of themselves in the Supreme Court.

  • • •

  As Korrell and Gordon worked on their merits briefs, the Bush administration was weighing its own position in the school cases. The legal territory was not exactly virgin.

  Only three years had passed since the Court had decided the constitutionality of the race-conscious admissions plans in the University of Michigan cases. At the time of those cases, then Solicitor General Theodore Olson, who had successfully argued Bush v. Gore, had gone to the White House with his principal deputy, Paul Clement, and Attorney General John Ashcroft, to urge that the administration should oppose any use of race in the admissions policies and seek to overturn the 1978 Regents of the University of California v. Bakke. The Bakke decision was the foundation for the Court’s later decisions in the two University of Michigan cases. But the Bush administration did not want to go that far. Instead, the government supported diversity in higher education but opposed the Michigan University and Law School race-conscious admissions plans because they were not narrowly tailored—there were race-neutral alternatives to achieving diversity, argued the administration.

  “I wanted to take a stronger position in Grutter and Gratz,” said Olson. “As it turned out, it wasn’t terribly helpful to take a mushy position on narrow tailoring. It produced decisions coming out one way with the law school [admissions plan upheld] and another way with the campus generally [admissions plan struck down].”6

  Olson’s deputy, Clement, now was solicitor general and faced once again the question of whether racial diversity could be a compelling government interest, but this time in the context of elementary and secondary education.

  The solicitor general of the United States—the fourth-ranking official within the Department of Justice—supervises government litigation in the Supreme Court and also reviews all cases in the lower courts in which the government has lost to determine whether to appeal those losses. Often called the tenth justice, the solicitor general has a special relationship with the Supreme Court. Former Solicitor General Seth Waxman once described that relationship as being “to respect and honor the principle of stare decisis, to exercise restraint in invoking the Court’s jurisdiction, and to be absolutely scrupulous in every representation made.”7 Because of that relationship, the solicitor general is given a certain amount of independence not accorded other offices within the Justice Department.

  Clement, a Wisconsin native and Harvard Law graduate, became acting solicitor general in July 2004 at the age of thirty-eight, when Olson resigned. A former Scalia clerk, he was confirmed as solicitor general by the Senate in June 2005. He is considered one of the best Supreme Court advocates in the nation. Even in the most complex case, he stands at the lectern before the justices’ bench without notes or briefs and with total recall of facts and legal precedents down to page numbe
rs and footnotes. In private practice now, he handles some of the most high profile, conservative litigation in the courts today, including a challenge to the Obama administration’s health care law and the defense of the federal Defense of Marriage Act and Arizona’s tough anti-immigration law.

  There is a procedure within the solicitor general’s office for determining, first, whether to get involved in a Supreme Court case in which the government is not a party, and then what the government’s position should be if it does get involved. The office reaches out to all components of the executive branch that could be affected by the case and asks for their views. If a case involves a particularly controversial issue, there also may be communication with the attorney general and the White House.

  A “big case” atmosphere surrounded the Seattle and Louisville school challenges in the solicitor general’s office, and the White House was following the cases. But the Michigan case experience was still fresh; only some of the government players had changed in the ensuing years.8

  “In that kind of a case, the important view you want to get is the Department of Education,” said a lawyer close to the process. Secretary of Education Margaret Spellings had advocated for the elimination of race as a criterion for public school assignments, but like President Bush, she supported the concept of diverse public schools.

  As the solicitor general considered the government’s position, the lawyers in the Seattle case sought meetings with Clement to seek the government’s support. It is fairly common for lawyers in Supreme Court cases to either seek that support or urge the government to stay out of the case.

  “We thought the only possible way that the solicitor general would stay out of the case was on standing grounds,” said Madden, the Seattle School District’s lawyer. He was referring to the requirement that a party who is suing must have suffered a direct, concrete injury such that there is a real case or controversy for a federal court to resolve.

  “We said, ‘This is really not an issue the Court can provide any redress for because the race tiebreaker is not being implemented and all [our opponents] want to do is use this as a lever to force what they call neighborhood schools,’ ” explained Madden, adding, “It was a lost cause.”9

  Madden’s opponent, Harry Korrell, would have more success. Clement had decided the government would support the challengers, although not as aggressively as Korrell would have liked, but consistent with its positions in the Grutter and Gratz cases. Clement also attended a moot court arranged for Korrell by the Heritage Foundation, the conservative think tank in Washington, D.C., in preparation for the upcoming arguments, and he invited Korrell and his partner, Dan Ritter, to observe his own moot court put on by the Justice Department.

  By the second week of the October 2006 term, all of the briefs in the two school cases had been lodged with the Court. Roughly a dozen briefs supported the Seattle parent challengers and nearly fifty lined up behind the school districts. Key among parents’ supporters was a brief by social scientists contending that research on the relationship between attendance at racially diverse or integrated schools and student achievement was not “uniform, consistent or sufficiently conclusive” to support finding that achieving racial diversity was a compelling government interest.

  Countering the challengers’ social science brief was a brief representing the views of fifty-five social scientists. This brief argued that “racially integrated schools prepare students to be effective citizens in our pluralistic society, further social cohesion, and reinforce democratic values. They promote cross-racial understanding, reduce prejudice, improve critical thinking skills and academic achievement, and enhance life opportunities for students of all races.”

  At this point Michael Madden had a core group of lawyers assisting on the case, including Eric Schnapper of the University of Washington School of Law and Maree Snead, John Borkowski, and Audrey Anderson of Hogan & Hartson, a Washington law firm where, ironically, John Roberts had headed the appellate practice before becoming a federal judge. Snead and Schnapper coordinated the amicus effort.

  The school districts’ supporting briefs came from civil rights organizations, historians, social scientists, retired military officers, and Fortune 500 officers, among others. The outpouring was remarkably similar to the amicus effort on behalf of the University of Michigan’s race-conscious admissions policies.

  Even though Justice Kennedy had voted against the Michigan plans, the school district lawyers believed his vote could determine the outcome in their cases. And they hoped that even just one of their many supporting briefs might be the one to persuade Kennedy to see the landscape of urban public schools as they did.

  “People were struck by the impact of the [military] service academies’ briefs in the Michigan cases,” said Madden. “We were thinking maybe lightning would strike twice and someone would care about an amicus brief other than the solicitor general’s.”

  As everyone settled into the new term, two questions lingered inside the Court: Would Chief Justice Roberts be able, as he said in a speech that spring, to achieve more consensus on the Court through narrow—minimalist—opinions? And what about Justice Alito? He had shown himself to be reliably conservative, but in what ways would he differ, if at all, from the Court’s other conservative justices, Scalia and Thomas?

  Because of Roberts’s speech, there was a sense among some justices and the new class of clerks that there would be more room for compromise in individual cases. And compromise in the Court is not horse trading.

  “I was very, very surprised there was no horse trading of any kind,” said one clerk of his experience that term, a view echoed by others. “I was a little surprised at how pure that was. But as far as a justice saying, ‘I can join [an opinion] if this or that word is changed or this happens,’ that’s the nature of compromise.”

  It was more of that kind of compromise that justices on the Court’s left wing were hoping to see. Perhaps more than any of the justices, Justice Stephen Breyer would look for a willingness to give a little if a little were offered. That had been part of Sandra Day O’Connor’s strategic successes.

  Breyer and O’Connor had a close relationship on the Court. Although they did not always end up in the same place in case decisions, he believed they both approached cases pragmatically. They also shared an understanding of the art of compromise—O’Connor from her days as an elected state legislator, and Breyer from his time as legal counsel to the U.S. Senate Judiciary Committee and later as a member of the U.S. Sentencing Commission, which developed mandatory guidelines used by judges to impose punishments for criminal offenses.

  “Much more than Justice Stevens, he has a certain faith in the ability to be strategic,” said another former clerk.

  But Breyer undoubtedly sensed where the Court was heading at the end of the 2005–06 term. In the last full term in which O’Connor served—the 2004–05 term—Breyer had cast only 10 dissenting votes and O’Connor 11, the fewest of all the justices. In the term that had just ended, Breyer cast 15 dissenting votes, only 2 fewer than Stevens, who cast the largest number.

  Even after the 2006 term had turned into a rout for Breyer and his colleagues on the left, the justice from Massachusetts would continue to look for that willingness to give a little in subsequent Court terms, and would be disappointed more often than not.

  The justices reject the notion that any one among them acts as a strategic leader of the left or the right or in any particular area of the law. John Paul Stevens was often dubbed by the media as the strategic leader of the Court’s left wing. He served as the senior associate justice from 1994, when Harry Blackmun retired, until his own retirement in June 2010. As senior associate justice, he had the power to assign opinions whenever he and the chief justice were on different sides. He would assign the majority opinion when the chief was in dissent, and the lead dissent when the chief was in the majority.

  Roberts himself has said that using the assigning power is like solving a Rubik’s Cube
. There are numerous factors to weigh in deciding who should write a majority opinion, such as evenness of workload among the justices and which justice is most likely to write in a way that holds the majority together.

  One Court observer wrote that Stevens used the assigning power “to build coalitions and has become the undisputed leader of the resistance against the conservatives on the Court.”10 Not everyone agrees.

  “I think it’s a misperception,” said one justice. “In giving out assignments, he took most of them himself, although he was very fair. I don’t see him as a leader.”

  “There is no such thing [as a strategic leader],” insisted Breyer. “It may depend on a particular case. You have to listen to people and try to put it together.”

  Another justice explained, “I think it’s neither there are leaders in camps now nor nine separate stovepipes. If you think hard about what people are saying, why they are where they are, that gives opportunities. It would not be right to say it’s in every case. There are just some cases where there are four saying one thing and four saying another, and we sit around and wonder where the ninth is coming out. Or, it will be clear where he is, and we walk in and everybody knows this is going to be a five-to-four case. Of course at that point, you can have all the strategic leadership in the world and it won’t get you anywhere. On the cases where there is play in the joints, I think it happens a little bit more sort of organically. Sometimes it might be one person who has the good idea to get something done; sometimes it might be another person.”11

  Stevens did not think of himself as playing the leader role, corralling other justices into joining an opinion, said some of his former clerks. His voice did carry weight with his colleagues, particularly because of his long tenure on the Court. “He had seen everything before and the other justices responded to that,” noted one former clerk. And Stevens had a remarkable memory.