The Roberts Court: The Struggle for the Constitution (13 page)

—Associate Justice Stephen Breyer, 2011

B
y the time the Supreme Court had decided to hear the Seattle and Louisville school cases, six years had passed since Kathleen Brose and her organization, Parents Involved in Community Schools, had begun their odyssey through the state and federal court systems.

Brose’s eldest daughter had graduated from high school in Seattle. Crystal Meredith’s son, Joshua, no longer a kindergartner, was completing the third grade in Louisville.

Brose had kept her commitment “to take this [challenge] as far as we can.” And so had the Seattle School District. At this point, the city had a whole new school board and a new superintendent, but the prevailing sentiment had not changed: school boards should have the race tiebreaker available as a tool and the Constitution permits the use of race to integrate schools without a court order.

Brose and Meredith and their lawyers had reason to be optimistic, despite having lost their lawsuits in the lower courts. The Supreme Court generally does not take cases to affirm lower court decisions. The justices reverse the lower courts’ rulings in about 70–75 percent of the cases in which they have granted review. The fact that review here was
granted even in the absence of any genuine confusion or conflict among the circuit courts over race-conscious school assignment plans also indicated intense interest on the part of some justices.

And because of those reasons, the Seattle School District’s attorney, Michael Madden, believed Seattle’s case was lost. “The day cert was granted I knew it was done. It was just how bad we would lose,” he recalled.
¹

But neither side was ready at this stage to cede ground in a fight that journalists, scholars, and others were calling potentially the most important school desegregation challenge since the landmark
Brown v. Board of Education
of 1954.

Both school cases had now entered the stratosphere of Supreme Court litigation. Arguments before the justices were six months away. In the meantime, the lawyers had to write their briefs, organize an amicus effort (briefs written by supporters), and prepare for the oral arguments.

The “script” that helped Chief Justice Roberts get through his first days on the Court kicks in for lawyers handling cases as well. The school assignment challengers had forty-five days to write and submit their briefs on the merits of their challenge. The school districts had thirty days after those submissions to respond with their counterarguments. The challengers would get a final comment thirty days after the districts responded.

Although oral arguments in a Supreme Court case are often the most dramatic part of the case, many of the justices have emphasized that the most important part to them are the parties’ briefs. A well-written brief, some have said, can win a weak case, while a poorly written brief may lose a strong one.

“The oral argument is the tip of the iceberg—the most visible part of the process—but the briefs are more important,” said Chief Justice Roberts in a 2007 interview.
²

Justice Ginsburg agrees, saying, “Of the two components of the presentation
of a case, the brief is ever so much more important. It’s what we start with; it’s what we go back to. The oral argument is fleeting and very concentrated, just a half hour per side. It is a conversation between the Court and counsel. It gives counsel an opportunity to face the decision-makers, to try to answer the questions that trouble the judges. So oral argument is important, but far less important than the brief.”
³

The merits briefs, as they are known, lay out the facts of the case for the justices: how and why the lawsuit began; what happened to the lawsuit in the lower courts and the reasoning of the lower court judges; and finally, in the bulk of the briefs, the legal arguments as to why the Supreme Court should rule in a certain way.

Korrell and his partner Dan Ritter, who were representing the Seattle parents’ group, soon discovered that even the most obscure case, once the Supreme Court has granted review, is catapulted to the attention of special interest organizations and lawyers who specialize in handling Supreme Court cases.

“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 numbers 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.