The Roberts Court: The Struggle for the Constitution (34 page)

The deputy tried to explain that the statute contained a media exemption, but Alito interjected, “I’m not asking what the statute says. The government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation?” Stewart gamely responded, “Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right.”

At that point, Roberts led Stewart through a series of hypotheticals about Kindles and books, books that mention a candidate’s name once, 500-page books that at the very end say, “Vote for
X
.” “Our position would be that the corporation could be required to use PAC funds rather than general treasury funds,” said Stewart. “And if they didn’t, you could ban it?” asked Roberts. “If they didn’t, we could prohibit the publication of the book using corporate treasury funds,” repeated Stewart.

Breyer stepped in, saying the answer to whether the government can ban labor unions, corporations, or environmentalists from saying they love
A
,
B
, or
C
, is “of course the government can’t ban that. The only question is who’s paying for it. And they can make a determination of how much money the payors can pay, but you can’t ban it.” Stewart agreed. “That’s correct.”

The deputy solicitor general told the justices that what made
Citizens United
an “easy” case was not simply that the movie repeatedly criticized
Hillary Clinton’s character and integrity. “The clincher is that the film repeatedly links Senator Clinton’s purported character flaws to her qualifications for president.”

In his rebuttal, Olson immediately picked up on the book-banning exchange with Stewart and said it was clear that the government believed any form of express advocacy by a corporation can be prohibited, whether books, yard signs, newspapers—anything in printed form. But Breyer rejoined, “Of course you can’t prohibit all those things. What you do is put limitations on the payment for them. See that there are other ways of paying, say as PACs, and then limit very carefully the media that are affected and the times for which they are affected.” Those reforms are in the statute, he added.

Olson replied that five justices in
Wisconsin Right to Life
had said the PAC mechanism was burdensome and expensive, and, he added, it is particularly burdensome on small corporations—the least capable of communicating.

When the hour-long, swiftly paced argument ended, the lingering image in most observers’ minds was of the government banning books. Despite Stewart’s attempt to apply the language of the law and the Roberts Court’s most recent interpretation of it to Citizens United’s movie, what emerged from the arguments was a clear indication that five justices might be ready to overturn the 2003 decision upholding the McCain-Feingold law, and by doing that, fundamentally change political campaigns.

“Malcolm Stewart has huge integrity,” recalled Bossie. “It certainly didn’t sound good for their side when he said they can ban books. It really made us think we could win this thing. All I wanted to do was win something.”

“After that it was just a waiting game,” said Boos. Bossie added, “And the waiting game was really hard.”

Shortly before the arguments in
Citizens United
, a new solicitor general had come into office to represent the government before the Court: Elena Kagan, the forty-nine-year-old dean of Harvard Law School and
a former adviser in the Clinton White House’s domestic policy office, was tapped by President Obama to head the office. Kagan, the first woman to fill that post, was widely admired for her brilliance and her management of the law school and her ability to bring together colleagues with diverse viewpoints. Her ties to Obama went back to their days in Chicago where she was a tenured professor at the University of Chicago School of Law and he was a part-time lecturer.

Kagan’s chief deputy in the office was Principal Deputy Solicitor General Neal Katyal, a highly respected constitutional law scholar at Georgetown University Law Center. Kagan, a former clerk to Justice Thurgood Marshall, not only had never argued before the Supreme Court but had never argued a case in any court. When he moved into the Office of Solicitor General, Katyal, a former Breyer clerk, had made just two Supreme Court arguments, the most important of which was his victory in
Hamdan v. Rumsfeld
during the first term of the Roberts Court. A 5–3 Court struck down the military commissions established by the Bush administration and Congress to try Guantánamo Bay detainees in the war on terror.

One of the brightest lawyers of his generation, the soft-spoken, unflappable Katyal, just thirty-nine at the time, would play a key role in the defense of Obama’s Affordable Care Act, a legal battle just one year away.

That spring, the Court itself was on the brink of another transition. In April 2009, rumors that David Souter would retire flew across airwaves and blog posts. The telltale sign? Although Souter was generally among the last of the justices to hire clerks for a new term, he had not begun to interview potential clerks by mid-April for the coming term. The eccentric Souter, a Yankee Republican who wrote with a fountain pen, worked by natural light until forced to turn on a lamp, and eschewed computers, never grew to like Washington even after nearly two decades on the Court, and he never hid his desire to return eventually to his home in New Hampshire.

Souter’s official retirement announcement would not come until
May 1. Before that, however, he and his colleagues had the term’s final round of arguments to hear, and on that April calendar were two of the term’s biggest cases once again raising questions involving race discrimination.

•  •  •

The city of New Haven, Connecticut, administered promotion exams in 2003 to eligible firefighters. When the test results came back, they showed dramatic racial disparities. The pass rate of black candidates on exams for captain and lieutenant was about one half the pass rate of white candidates, and out of nineteen possible candidates for promotion to the fifteen available positions, no black firefighter scored high enough to qualify.

If it certified the test results, the city worried it could be sued by black firefighters for so-called disparate impact discrimination, which occurs when a policy or practice—neutral on its face—adversely affects a protected class of people. The city held several days of public hearings on whether to certify. At the end of the hearings, the city’s civil service board voted 2–2, which left the results uncertified. Soon afterwards, a group of white and one Hispanic firefighter sued the city, charging that its refusal to certify the results discriminated against them on the basis of race in violation of the Fourteenth Amendment’s equal protection clause and the ban on disparate treatment (intentional) discrimination in the nation’s major job bias law: Title VII.

The backdrop to the case,
Ricci v. DeStefano
, was a long history of racial discrimination in the hiring and promotions of firefighters across the country. That discrimination had proven to be more difficult to eliminate than in any other public or private sector employment, according to briefs filed by civil rights groups in the case.

“The case involving the firefighters was terribly difficult,” recalled one justice, adding it was harder than the Seattle and Louisville school cases.

The difficulty for the Court was that the
Ricci
case pitted two critical
prohibitions in Title VII against each other: the bans on disparate impact and on disparate treatment discrimination on the basis of race, color, gender, religion, and national origin. New Haven believed it would be sued whatever it did with the test results.

During the
Ricci
argument, Justice Souter summed up the dilemma for employers by saying it was a “damned if you do, damned if you don’t situation.”

The case also was difficult because it cracked open again the divide among the justices on how to view racial classifications. John Roberts had come to the Court deeply skeptical of all such classifications, and by the time he wrote his opinion in the Seattle and Louisville school cases in 2007, his skepticism had changed to overt hostility.

Roberts pressed the city’s lawyer on why the city’s failure to certify the test results was not intentional discrimination. “There are particular individuals here and they say they didn’t get their jobs because of intentional racial action by the city,” said the chief justice.

The city, supported by the United States, argued that it was trying to comply with Title VII and that declining to use the results of a flawed test was a race-neutral decision. In the end, no one was promoted. That decision, the United States also agreed, was not equivalent to prohibited racial balancing or imposing quotas.

However, the white firefighters’ lawyer countered that specific individuals had earned their promotions, “and then the city says too many non-minorities passed this test, and we are going to scuttle these results based on identifiable individuals who have passed and not based on anything approaching a demonstration that there is actually any disparate impact liability.” More is needed from the city than simply saying it was acting in good faith, he said.

The
Ricci
case and its final decision would take on even greater prominence later that summer during the Senate Judiciary Committee’s hearings on President Obama’s nomination of Judge Sonia Sotomayor to succeed Souter. Sotomayor sat on the three-judge appellate panel that ruled against the white firefighters, who then took their appeal to the
Supreme Court. Her role in the case would become a target for Senate Republicans and others opposing her nomination.

On the term’s final day of arguments, the justices took up the second race-related case, a potential blockbuster involving race in a very different context. Chief Justice Roberts would lead the Court’s decision, and that decision may well have been the unusual precursor to Roberts’s ruling in the landmark health care case in 2012.

The Voting Rights Act of 1965 took center stage in
Northwest Austin Municipal Utility District No. 1 v. Holder
, commonly called
NAMUDNO
. By 1965, violence and other acts of terrorism had injured and taken the lives of voting rights activists in southern states hostile to giving black Americans the full enjoyment of their rights under the Fifteenth Amendment. The U.S. Department of Justice was making little headway in fighting discriminatory voting practices on a case-by-case basis in those states because as soon as it won a case against one particular discriminatory practice, a new practice would emerge to replace it.
⁸

President Lyndon Johnson and Congress decided that tougher, more effective anti-discrimination laws were needed. The result was the Voting Rights Act, considered the nation’s most effective civil rights law. The act has two critical provisions, one permanent—Section 2—and the other temporary but periodically reauthorized by Congress—Section 5.

The act’s Section 2 bans racial discrimination in voting nationwide. Section 5 requires certain state and local jurisdictions with a history of voting discrimination to obtain federal approval (known as “preclearance”) of proposed changes in their voting or election procedures. Those so-called covered jurisdictions (nine states and portions of seven others) must demonstrate either to the Justice Department or the federal district court in Washington, D.C., that the proposed change does not have the purpose or effect of denying the right to vote on account of race, color, or language-minority status. Covered jurisdictions could bail out by showing they had not run afoul of the act for the past five years. Section 5 is widely regarded as the heart of the Voting Rights Act.

By 2009, when the justices took up the
NAMUDNO
case, Congress had reauthorized the act five times, most recently in 2006 when the House and Senate, by an overwhelmingly bipartisan vote, extended its provisions for an additional twenty-five years. Congress acted after holding twenty hearings and collecting more than 17,000 pages of testimony documenting the continued need for the act.

Ten days after the 2006 extension was signed by President George W. Bush, the Northwest Austin Municipal Utility District No. 1, a small water district within Austin and Travis counties in Texas (a covered jurisdiction), challenged the act in federal district court. Edward Blum, head of the one-man, conservative activist organization the Project on Fair Representation, recruited the water district in order to make the constitutional challenge to Section 5.

Blum, a non-lawyer, is a longtime opponent of race-based laws, who raises funds and finds lawyers to bring lawsuits against racial classifications by public entities. He is the moving force behind the affirmative action challenge to the University of Texas’s admissions policy scheduled for argument and decision in the 2012–13 Supreme Court term, as well as another Section 5 voting rights challenge to be decided in that same term.
⁹

Blum’s contact with the water district came via the late Gregory Coleman, a former Clarence Thomas clerk, a former Texas solicitor general, and a formidable appellate attorney. Coleman, who represented the white New Haven firefighters in the
Ricci
case, knew the head of the water district and suggested him to Blum when Blum was looking for a plaintiff to bring the Section 5 lawsuit.

The water district wanted to move its elections from private homes and garages to a school or another public place, but it chafed under the federal law’s preclearance requirement for making election changes. In its lawsuit, it sought to use the bailout provision in the Voting Rights Act, arguing that the district had never discriminated in voting and had always received approval for its election changes. Failing that option, it argued that Section 5 was unconstitutional. The federal court ruled
against the water district on both claims and the district appealed to the Supreme Court.