The Roberts Court: The Struggle for the Constitution (14 page)

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.

“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.

•  •  •

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.