by Marcia Coyle
“I think it was more circumstance than active leadership,” said another. “He wasn’t the kind of justice who would go and have a long conversation with another justice, in part because he thought it was so important for each justice to come to his or her own conclusion.”
Antonin Scalia became the senior associate justice after Stevens’s retirement. Since he is not often in disagreement with Roberts, he does not often get the opportunity to use the assigning power. “All it does for me is I get introduced as the senior associate justice. I feel I ought to come in with a walker. No good otherwise,” he said.12
But in October 2006, it was still Stevens as the senior associate justice and the most frequent voice in counterpoint to the Court’s conservatives. Alito was beginning his first full term. And Kennedy was about to occupy—to a degree he had never done—the center of the Court and, with that position, the power to determine the outcome in its closest cases.
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From October through April, the Court each month sits in argument sessions for two weeks and then is in non-argument session for the remaining two weeks, during which the justices are reading briefs and writing opinions. During argument weeks, the justices hear cases on Monday, Tuesday, and Wednesday, usually allotting one hour (thirty minutes per side) for each case. The number of cases heard each term has decreased dramatically over the years—from about one hundred fifty per term before 1990 to about eighty since then. As a result, arguments rarely go beyond the noon hour today. Once arguments are finished in late April, the justices spend May and June completing their decisions, the bulk of which are issued in June.
The October 2006 term began on the traditional first Monday—October 2—but no arguments were heard that day because it was the Jewish holyday, Yom Kippur, and the justices only released an “orders list”—a listing of cases from the summer granted and denied review.
The next morning, the October argument session began. Nine cases were argued in the two-week session, none of which offered a hint of what was to come. Beginning with the November argument session and each month thereafter, the justices heard one or more cases that continuously upped the stakes in the term.
In November, it was Gonzales v. Carhart—the Bush administration’s appeal of a decision by a lower federal appellate court striking down the Partial-Birth Abortion Ban Act of 2003. The lower court held that the act imposed an undue burden on a woman’s right to choose an abortion because it lacked an exception to protect a woman’s health, as required by earlier Supreme Court abortion precedents. That court found the act was overbroad in that its language banned more procedures than the targeted “intact dilation and evacuation” abortion method.
In December, the Seattle and Louisville school cases were on the argument calendar along with the Court’s first global warming case, which galvanized the business and environmental communities. The justices also would hear the now famous Lilly Ledbetter pay discrimination challenge and the first in a series of procedural cases that would become the basis of later charges that the Roberts Court is a pro-business or pro-corporate court.
Still to come in the new year were cases involving capital punishment and the mentally ill; the ability of taxpayers to challenge federal programs that may violate separation of church and state; and regulation of campaign advertising by corporations—a prelude to Citizens United.
By the end of the term, pundits and analysts would be calling the Court the “Kennedy Court” because of Anthony Kennedy’s decisive role in so many of the key cases. The fragile attempt at consensus, which succeeded to a certain degree in the previous term, would fall apart. And it would be clear that a new sheriff was in charge and he and his team were eliminating or “disarming” precedents with which they disagreed.
But none of that was yet apparent to the lawyers and crowds gathered outside the Court on that bracing, clear December day for arguments in the Seattle and Louisville school cases.
Kathleen Brose and her friend Jill Kurfirst were among the lucky few with reservations. They thought they would get special seats, but reservations only guarantee seats in the pews in the public viewing section. The courtroom holds about 250 people and, like most visitors, they were surprised by the intimate nature of the room. Unlike most appellate courtrooms, where the judges sit on elevated benches quite distant from the lawyers and audience, the justices are near to both. A tall lawyer at the lectern before the bench would be almost on eye-level with the chief justice, who occupies the center seat.
Between the public seats and the Supreme Court bench are rows of chairs for lawyer members of the Supreme Court bar. To the right of the bench, from the public’s view, are several pews reserved for the justices’ families and special guests. To the left are pews reserved for the press.
The courtroom was packed that morning. An undercurrent of excitement flows through the building and the courtroom in particular when a “big case” is being argued. Extra rows of chairs were placed behind the press rows to accommodate an overflow of reporters. Korrell, representing the Seattle parents’ group, and Madden, the school district’s lawyer, sat at the lawyers’ table directly in front of the justices’ bench and were separated by the lectern. The Seattle case was first on the calendar. Korrell shared table space with Solicitor General Paul Clement, whom the Court had given ten minutes out of Korrell’s thirty minutes to make the government’s argument—a not unusual practice. Madden sat with Hogan & Hartson attorney Audrey Anderson and watched as the courtroom filled.
Madden saw the widow of Justice Thurgood Marshall being escorted to a seat in the special guest section. “I leaned over to Audrey and said, ‘I guess this is a pretty big deal.’ She said, ‘Nah, the last case she came for was Anna Nicole Smith.’ It was a nice moment to break the tension.”
Korrell felt invigorated, not nervous. His wife recently had been undergoing cancer treatments and that put the Supreme Court experience into perspective for him. “I wasn’t the nervous wreck I might have been,” he said.
Both lawyers knew they would be lucky to get out three or four sentences before the justices pounced with questions.
Senator Ted Kennedy of Massachusetts and the trial judges in the Seattle and Louisville cases also took seats in the courtroom.
The Louisville lawyers—Teddy Gordon for Crystal Meredith and Frank Mellen for the school district—sat at separate tables behind the Seattle contingent. The Court also had given Clement fifteen minutes of Gordon’s time because, it was speculated, the justices feared Gordon’s argument might be inadequate given his astoundingly short eight-page brief on the merits of his case.
At one minute past 10 am, the chief justice opened arguments in the school cases. The next two hours revealed clear divisions among the justices: Madden’s prediction—six months earlier—that the only question was how badly the school districts would lose appeared to be right on target.
Anthony Kennedy, whom many believed held the key to the outcome, accepted that the school boards in the cases were acting in good faith to maintain integrated schools. But, he said to Madden, “The problem is that unlike strategic siting [of new schools], magnet schools, special resources, special programs in some schools, you’re characterizing each student by reason of the color of his or her skin. And it seems to me that that should only be, if ever allowed, allowed as a last resort.”
Justice Kennedy, however, also did not seem entirely satisfied by the challengers’ arguments. He probed Korrell on whether it was permissible for a school district, dealing with the effects of segregated housing patterns, to have a race-conscious objective, for example, in selecting among sites for a new school the one that would create racial diversity or balance. Korrell responded that if the sole goal were to achieve racial balance, that would be unconstitutional absent past discrimination.
Korrell’s core argument was that the Fourteenth Amendment’s equal protection clause commands that government treat people as individuals, not simply as members of a racial class. Th
e school district here was not remedying past discrimination but trying to achieve a white/non-white racial balance. Louisville’s Gordon took a similar position. Although the Louisville School District, unlike Seattle, had been under a court order to desegregate its schools, when that order was lifted, race-based remedies were no longer allowed by the Fourteenth Amendment, he argued. The school assignment plan, which required each school to have from 15 percent to 50 percent black students, was an unconstitutional quota system, he said.
Solicitor General Clement, although opposing the two school plans, conceded more of a role for race than did the challengers. The government argued that school districts have an “unquestioned interest” in reducing minority isolation but must use race-neutral means. He told Kennedy that his strategic school siting hypothetical would be permissible. Broad measures with a racial objective are constitutional; simply classifying individuals by race is not.
As the school district lawyers struggled to persuade skeptical conservative justices that diversity was a compelling interest and their use of race a narrowly tailored means to achieve that goal, they received help from Justices Breyer, Souter, and Ginsburg.
Breyer repeatedly brought up long-standing desegregation decisions by the Court, such as Swann v. Charlotte-Mecklenburg Board of Education, which approved busing and racial balancing to achieve desegregation—far more radical methods than what was at issue in the Seattle and Louisville cases, he said.
Madden emphasized that the Seattle school board was trying to distribute, to sort out seats that were available at popular high schools. Every student, he said, had the opportunity to be assigned to at least one of those popular schools. Unlike affirmative action programs, he said, “This is not a selective or merit-based system where we adjudge one student to be better than the other. We do consider individual factors before we get to race, starting with choice and family connection, and how close you live to the school.”
Roberts asked the one question that simultaneously shocked civil rights advocates in the audience and foreshadowed where he might be headed in his thinking about the two cases and a venerable landmark decision.
“Everyone got a seat in Brown as well, but because they were assigned to those seats on the basis of race, it violated equal protection,” he said. “How is your argument that there’s no problem here because everybody gets a seat distinguishable?”
Madden paused, taken aback that the chief justice seemed to suggest that segregation before Brown v. Board of Education was equal to Seattle’s attempt to integrate. He then replied, “Because segregation is harmful. Integration, the Court has recognized in Swann, in the first Seattle school case, has benefits.”
Justice Ginsburg could not let the implications of Roberts’s question go without comment. Shortly after Madden’s response, she said, “And the question of whether any use of a racial criterion in integration is the same as segregation, it seems to me, is pretty far from the kind of headlines that attended the Brown decision. There were, at last, white and black children together on the same school bench. That seems to be worlds apart from saying we’ll separate them.”
Madden later recalled that when Roberts asked the “everyone got a seat” question, his colleague, Audrey Anderson, who had clerked for Chief Justice William Rehnquist and had worked with Roberts in private practice, let out an audible gasp in surprise and jerked in her chair. “I could hear Audrey and I knew he could, too.”
As the arguments drew to a close, Justice Thomas, who very rarely asked questions during any arguments, moved in a way that suggested this time he would. He leaned forward and raised his arm. “You could hear a pin drop,” recalled Kathleen Brose later. Reporters in the press section also quickly had pens ready. (Thomas asked his last question during a Supreme Court argument on February 26, 2006.)
But Thomas then reached for the drinking goblet each justice has and sat back. “What I could see then is he leaned over to Justice Kennedy next to him, and I can read his lips perfectly well, and he said, ‘Got ’em,’ ” chuckled Madden. “The justices were so hot and at each other. I wondered if it was an attempt at an icebreaker.”
When Roberts gaveled the arguments to a close, it was clear to all in the courtroom that there would be no quick decisions in the two cases. But even if the public has not been told an outcome, the justices know it shortly after the arguments. For Monday and Tuesday arguments, they meet that Wednesday to vote on the outcomes. For Wednesday cases, they vote in their Friday conferences. Within a day or two of the conference, the chief justice, if he is in the majority, sends the opinion assignments to the other justices. When he and the senior associate justice are on opposite sides, they confer so he is better able to make the other assignments and equalize the workload.
The end of the December argument session marked the beginning of one of two long breaks on the Court’s argument calendar. The second is in February. During those breaks, the justices are not idle. They prepare for arguments, draft and exchange opinions, handle emergency matters—almost always requests for execution delays—and review incoming petitions.
A clearer picture of the 2006–07 term would not begin to emerge publicly until April—four months after arguments in the school cases. But inside the justices’ chambers, the image became clearer at a faster pace, and it was neither happy nor pretty.
CHAPTER 6
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
—Chief Justice John Roberts Jr., 2007
As the term moved into 2007, more than one former clerk used the same words to describe the feelings inside the Court: “very fractured,” “heated,” and “tense.” The feelings were reflected primarily in the justices’ draft opinions and in “a lot of serious conversations” among the clerks as well.
The justices generally allow their clerks to decide how to divide up the merits cases they will be working on in the term. In some chambers, the clerks draw straws. In Kennedy’s chambers one term, a mock NFL draft was done each month. In Stevens’s chambers, the clerks in one term also separated the term’s biggest merits cases and divided those as well to ensure that each of them had a chance to work on one of the big cases.
A clerk then becomes the expert or “point clerk” on his or her selected cases. In Roberts’s chambers, if the chief had an opinion to write, the point clerk did the first draft. It was not unusual for Roberts, who writes his opinions in longhand, to work through ten to thirty drafts. At some point, all of his clerks would get a chance to weigh in on the opinion. At the end, 80–100 percent of the words were Roberts’s words, “and every good line is his handwritten work,” said one former clerk.
Justice Scalia also uses his clerks for first drafts, sometimes providing very detailed guidance and sometimes less so, but always after discussion. Justice Stevens “always wrote the first draft—a framework of what he wants to hold,” said one of his former clerks. “Sometimes it would be a rough idea of what he wanted to say; sometimes it would be more full and reference key cases. The clerk would transform what he said into what resembled a full opinion and then there would be back-and-forth.”
Justice Thomas has a much more structured approach, which partly reflects how little value he puts on oral arguments. In a 2007 interview for The Scribes Journal of Legal Writing, he said that before he goes on the bench for arguments in a case, “We [he and his clerks] have an outline form of the disposition of the case that we’ve discussed. So when we go on the bench, we already have an outline, if we get the opinion, of how we would do it. That’s when we go on the bench for oral argument. Then after, when we go in conference, we have the final-disposition memorandum. We have further discussions about the case. So when we get a draft, when we get an opinion draft, we’re already three-quarters down the road—which is just a matter of putting it on paper.”
If their justice is not writing an opinion, their clerks monitor the other justices’ draft opinions and write memos to th
eir justice or advise their justice on whether to join, not join, or suggest particular changes in those opinions. The clerks also talk with each other. “We tried to pay attention to who was working on what and where their bosses were coming out,” said one former clerk. “Every justice wants to get a sense of what is nine to zero or five to four.”
The fractured nature of the term would be seen at the end in the number of decisions decided by five-vote majorities: twenty-four compared to sixteen in Roberts’s first term (eleven with 5–4 majorities). Nearly every high-profile case fell into that category. The Court’s liberal wing (Stevens, Souter, Breyer, Ginsburg) prevailed in only one major case. The Court’s conservative wing dominated thirteen of the twenty-four most closely divided decisions, while the liberal wing prevailed in six. Kennedy remarkably was in the majority in all twenty-four—a sign of his critical role—and he dissented only twice all term.
In early April 2007, the Court announced the liberal wing’s only major victory—the justices’ first brush with global warming. In Massachusetts v. Environmental Protection Agency, the majority, led by Stevens, held, first, that states had special standing to bring a lawsuit challenging the EPA’s refusal to regulate greenhouse gas emissions from new motor vehicles; and second, that the Clean Air Act provided the authority for regulation by the EPA.
It was, in a sense, downhill from there for the four to the left of the Court’s center. Two weeks later, Kennedy led a 5–4 majority in Gonzales v. Carhart to uphold the federal Partial-Birth Abortion Ban Act of 2003, even though the banned abortion procedure lacked an exception to protect a woman’s health when necessary. Alito, who did not ask a single question during arguments in the case, joined the majority. Breyer, just seven years earlier, had led a different 5–4 majority—which included O’Connor—in striking down a similar Nebraska statute because it lacked the health exception. Kennedy had authored a bitter dissent in that case.
