Standing at the lectern in the white marble courtroom, Rein was so eager to make his argument that he jumped in before Roberts could call the case. “Mr. Chief Justice, and may it please the Court—” the tall, silver-haired Rein began from his place below the bench.
“Well, I get to say,” Roberts lightly interrupted him, “that this is case number 11-345, Fisher against the University of Texas at Austin, and you get to say…”12
Rein nodded and then repeated the salutation of, “Mr. Chief Justice … may it please the Court…” Rein was arguing that the University of Texas had violated Fisher’s equality rights under the Constitution. “The central issue here is whether the University of Texas at Austin can carry its burden” to justify the decision, he said. Fisher was watching from a seat near the back of the spectator section. The slight, shy young woman sat with her parents and with Edward Blum.
Before Rein had gotten very far in arguing that Fisher was a victim of racial bias, Sotomayor made clear that she did not think the case belonged at the Court. Fisher had already completed her four years at Louisiana State University.
“She’s graduated,” Sotomayor said. “So what’s the injury?”
“The denial of her right to equal treatment is a constitutional injury in and of itself,” Rein answered. He said it did not matter that Fisher had turned to another school. She had been injured by the program’s favoring of some races over others.
As the oral arguments shifted into the merits of the case, Sotomayor vigorously defended the university’s attempt to generate a “critical mass” of minority students to make them feel comfortable and improve the educational experience for all. She referred to a study at the University of Texas that she said had found that “minority students overwhelmingly, even with the numbers they have now, are feeling isolated.”
Sotomayor became increasingly demanding of Rein, cutting him off several times before he had a chance to answer. “So what are you telling us is the standard of ‘critical mass’?” she asked. “At what point does a district court or a university know that it doesn’t have to do any more to equalize the desegregation that has happened in that particular state over decades … and it has to change its rules. What’s that fixed number?” She was addressing the statistical evidence that a university might need to continue an admissions process that uses race for the benefit of diversity.
Rein protested, saying it was the university’s—not Fisher’s—“burden to establish the number.” But Sotomayor cut him off again before he could continue, saying that university officials “took a study of students. They analyzed the composition of their classes, and they determined in their educational judgment that greater diversity” was needed.
Sotomayor pushed Rein to provide evidence that the University of Texas had failed to follow the law. “Tell me what about their use of race did not fit the narrow tailoring … that Grutter required? How is race used by them in a way that violated the terms of Grutter?”
A few minutes later she said to Rein, “So now we’re going to tell the universities how to run and how to weigh qualifications, too?”
“It’s not the job of the Court to tell them how to do it,” he responded. “It’s their job to examine the alternatives available to them and see if they couldn’t achieve the same thing.”
When Rein’s red light came on, indicating that he was out of time, Chief Justice Roberts referred to the few minutes advocates usually save to make final arguments, saying, “We will afford you rebuttal time, since our questions have prevented you from reserving it.”
Many of those questions were from Justice Sotomayor.
* * *
Next up was Gregory Garre, a generation younger than Rein, with his own impressive Republican credentials. Garre, a U.S. solicitor general under George W. Bush, was now in private practice at Latham & Watkins, the law firm that had successfully defended the University of Michigan law school program in 2003. The University of Texas hoped the hiring of the prominent national firm would again preserve campus affirmative action.
During his time at the lectern Garre argued that the University of Texas had complied with the 2003 Michigan ruling because the Austin campus was “taking race into account as only one modest factor among many for individualized considerations.”
When Ginsburg and Kennedy separately asked how long race would have to be considered to achieve the requisite diversity, Sotomayor jumped in. “Mr. Garre, I think that the issue that my colleagues are asking is, at what point and when do we stop deferring to the university’s judgment that race is still necessary? That’s the bottom line of this case. And you’re saying, and I think rightly because of our cases, that you can’t set a quota … So if we’re not going to set a quota, what do you think is the standard we apply to make a … judgment?”
Garre responded, “You would look to whether or not the university reached an environment in which members of underrepresented minorities, African Americans and Hispanics, do not feel like spokespersons for their race … an environment where cross-racial understanding is promoted, an environment where the … educational benefits of diversity are realized.”
Chief Justice Roberts and the other conservative justices suggested that such an open-ended standard was unworkable and that the university’s reluctance to fill in the contours of “critical mass” made it difficult to assess its constitutionality. Justice Kennedy, voicing skepticism throughout the argument for the university’s position, focused on “this hurt or this injury” arising from screening by race.
Since he joined the Court in 1988, Kennedy had never voted to uphold an affirmative action program and had dissented in Grutter v. Bollinger, asserting that the majority’s review of the University of Michigan Law School program was “nothing short of perfunctory.” He insisted that “the Court’s refusal to apply meaningful strict scrutiny will lead to serious consequences,” notably that faculties and administrators will have little incentive to devise “new and fairer ways to ensure individual consideration.”
In this new case, it appeared that Kennedy was ready to vote to strike down the University of Texas program and again try to curb the discretion of campus administrators. A big question was how sweeping the Court’s opinion might be and how it would affect policies nationwide.
Blum was feeling optimistic that affirmative action was going down. After the arguments, he treated Abigail Fisher, her parents, Rein, and an entourage of thirty other people, including donors, to a meal at Morton’s Steakhouse in downtown Washington.
Two days later, the justices took a preliminary vote in a private meeting, known as the “conference,” as was the usual practice after a round of oral arguments. These justices-only conferences occurred in a small oak-paneled room off the chambers of the chief justice. At a rectangular table below an intricate glass chandelier they cast their votes in order of seniority. Then the most senior justice in the majority would decide who was to write the opinion for the Court. The most senior member of the losing side would decide who spoke for dissenters.
In the University of Texas case, it initially looked like a 5–3 lineup. The five conservatives, including Justice Kennedy, wanted to rule against the Texas policy and limit the ability of other universities to use the kinds of admissions programs upheld in Grutter v. Bollinger. The three liberals were ready to dissent.
Yet that division would not hold. The case would go down to the wire, unresolved until the final week of the Court term in late June.
The deliberations among the eight (Justice Kagan did not participate in any of the negotiations) took place over a series of draft opinions, transmitted from computer to computer but also delivered in hard copies by messengers from chamber to chamber as was the long-standing practice.
Individual justices ended up assuming critical roles, among them Sotomayor as agitator, Breyer as broker, and Kennedy as compromiser.
The justices’ deliberations are highly secretive and rarely revealed.But in conversations with a majori
ty of justices, some of the negotiations in this case and Sotomayor’s role in the final decision became evident.13
* * *
The protracted negotiations occurred as Sotomayor was promoting publication of her new book, My Beloved World, and extolling the virtues of affirmative action in interviews. “I had been admitted to the Ivy League through a special door,” she wrote in the book, “and I had more ground than most to make up before I was competing with my classmates on an equal footing. But I worked relentlessly to reach that point, and distinctions such as the Pyne Prize, Phi Beta Kappa, summa cum laude, and a spot on The Yale Law Journal were not given out like so many pats on the back to encourage mediocre students.”14
In related interviews, Sotomayor offered a contrast to Justice Thomas’s well-known opposition to affirmative action and its stigma.
With the pending case, Thomas believed that the University of Texas was not only discriminating against white and Asian applicants but also hurting minority students. After the oral arguments, his law clerks gathered statistics that showed that blacks and Hispanics admitted to the university based on race were less prepared than their white and Asian classmates. They found that in the university’s entering class of 2009, beyond the separate top 10 percent group, blacks scored at the 52nd percentile of 2009 SAT takers nationwide, while Asians scored at the 93rd percentile. Blacks had a mean GPA of 2.57 and a mean SAT score of 1524 (out of a possible score of 2400); Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991.15
Such statistics made Sotomayor shudder. She rejected the notion that people could be seriously measured by scores. She believed that minorities from disadvantaged situations could catch up with nurturing and academic support on campus.
In an interview related to the promotion of My Beloved World, she told NPR reporter Nina Totenberg, “As much as I know Clarence, admire him and have grown to appreciate him, I have never focused on the negative of things. I always look at the positive. And I know one thing: If affirmative action opened the doors for me at Princeton, once I got in, I did the work. I proved myself worthy. So, I don’t look at how the door opened.”16
* * *
At the Supreme Court, as the anticipation intensified over how Sotomayor, Thomas, and the other justices were resolving the University of Texas case, the Court took up an equally polarizing dispute over the 1965 Voting Rights Act. Hanging in the balance was a provision, known as Section 5, requiring states and localities with a history of discrimination to obtain federal approval before making any change in their electoral rules.
It was a coincidence that the two cases arrived at the Court at the same time, but together the disputes heightened liberals’ fears that the Roberts Court was poised to roll back protections for racial and ethnic minorities.
The iconic Voting Rights Act prohibited poll taxes, literacy tests, and other measures that historically had prevented blacks and Latinos from voting. Democratic president Lyndon B. Johnson had won congressional passage of the law only after the “Bloody Sunday” episode on March 7, 1965, when state troopers clubbed and gassed peaceful civil rights marchers in Selma, Alabama, on the Edmund Pettus Bridge.
Unlike other parts of the Voting Rights Act that targeted intentional discrimination once it happened, Section 5 sought to head off any disenfranchisement of minorities preventively with the preclearance requirement. The provision, historically covering states in the Old South, had been designed to be temporary but had been repeatedly reauthorized by strong bipartisan majorities in Congress. The version of the law before the justices in 2013, signed by President George W. Bush in 2006, covered nine states entirely—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—and parts of seven others.
That 2006 reauthorization had earlier been tested at the Supreme Court, but the justices punted in the case of Northwest Austin Municipal Utility District No. 1 v. Holder.17 The Supreme Court said that the small water district near Austin that challenged the preclearance rule was eligible for an exemption, so there was no need to access the constitutional validity of the law. Still, in one of the most powerful passages of that 2009 opinion, Chief Justice Roberts declared that “things have changed in the South” and suggested that a majority might be ready to roll back the long-standing protections of Section 5 in the next case.
Alabama officials and the Southern states backing them in the case of Shelby County v. Holder tried to establish a record that would make it easy for the Roberts Court to follow through on its suggestion that it was time for the United States to move beyond this racial remedy. They stressed that the huge gap between white and black voter registration in the 1960s had closed and that African American turnout in some places during the 2012 elections was higher than white turnout. The Obama administration and civil rights advocates, alternatively, sought to make it difficult for the Roberts Court to invalidate the law aimed at Southern states by building a record that highlighted allegations of bias in such covered places as Texas, Louisiana, and South Carolina.
In his arguments before the justices on behalf of Shelby County in late February 2013, Bert Rein—again hired by Blum—asserted that the “preclearance” requirement for any changes to districting and ballot rules was an unconstitutional relic of an Old South that no longer existed. Rein contended that the government had been relying on an outdated formula, tracing to discriminatory polling practices in the late 1960s and ’70s, to restrict the nine states from making changes without prior approval. U.S. solicitor general Verrilli countered that Congress had compiled a sufficient record to demonstrate that the decades-old formula continued to target the places with the most serious problems of voting discrimination.18
As with college affirmative action, this was the first time that Justice Sotomayor was hearing a voting rights dispute on the Supreme Court. Hispanics, along with African Americans, had benefited from the Justice Department’s oversight of states with histories of race discrimination. Rein had not gotten very far along in his argument when Sotomayor and fellow liberal Justice Kagan asked why a time-honored plank of the Voting Rights Act should be invalidated in a case from Alabama, a state that had known decades of racial violence and discrimination.
“Think about this state that you’re representing,” Justice Kagan said. “It’s about a quarter black, but Alabama has no black statewide elected officials.”
Justice Sotomayor followed up, sharpening the focus on Shelby County: “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” In Shelby County alone, she asserted, Section 5 had prevented “240 discriminatory voting laws” from taking effect over the years. A telling example—though one not mentioned by either side at oral argument—involved the city of Calera. Over objections of the U.S. Justice Department, that Shelby County city had drawn a new voting district map plan that caused the sole African American on the city council to be voted out of office. After the Justice Department forced Calera to redraw the map, the councilman regained his seat.19
Rein did not challenge Sotomayor’s numbers, but he said that black voter registration and turnout was “very high” in Alabama. He also stressed that evidence on the ground was irrelevant when officials were lodging such a broad-based challenge to a law.
Justice Kennedy, sitting up in his chair and peering out through rimless glasses, said he was skeptical of a law that singled out the South for special federal regulation decades after the era of Jim Crow. “If Alabama … wants to acknowledge the wrongs of its past,” he asked Solicitor General Verrilli, defending the federal policy, “is it better off doing that [as an] independent sovereign or … under the trusteeship of the United States government?”
Verrilli said that many of the original places Congress targeted because of their deep-seated discrimination still needed oversight. “Of fundamental importa
nce here is that that history remains relevant,” he responded to Kennedy. That history of racial bias in America and its remedies created the backdrop for the Alabama voting rights and Texas affirmative action cases.
It would take many more months before the nation saw how the Supreme Court resolved the dilemmas.
After the private vote in the Fisher v. University of Texas at Austin case in mid-October, Justice Ginsburg, the most senior of the dissenters, had assigned Sotomayor the task of writing the opinion for their position, favoring the university. Ginsburg knew well Sotomayor’s passion on the legal issue and her personal stake. She had heard Sotomayor’s stories about the kind of suspicion that greeted her acceptance to Princeton. She knew that Sotomayor had been driven to prove her place at the Ivy League campus and was now proving herself at the Supreme Court.
As Sotomayor drafted and began sending her opinion to colleagues’ chambers, they witnessed this intensity. To some, it seemed a dissenting opinion that only Sotomayor, with her Puerto Rican Bronx background, could write. They saw it as the rare instance when she was giving voice to her Latina identity in a legal opinion at the Court. Others compared the dissent to the attention-getting fiery statements that were the trademark of Justice Scalia.
And get attention it did.
Certainly the justices were accustomed to individual differences in cases revolving around race and ethnicity, but in this dispute some were anxious about how Sotomayor’s personal defense of affirmative action and indictment of the majority would ultimately play to the public. Justice Breyer was among those who felt strongly that a compromise should be brokered. Breyer had, in effect, adopted a compromise position with Justice O’Connor in the 2003 University of Michigan cases. Breyer, a 1994 Clinton appointee who usually was ready to uphold government racial policies, had voted to endorse the law school program but had joined O’Connor and the conservatives against the automatic benefit for black and Hispanic applicants in the undergraduate program.
Breaking In: The Rise of Sonia Sotomayor Page 22