The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  If the civil rights community was alarmed, the conservative organizations that had been fighting race-conscious actions by the government in higher education, contracting, employment, and other areas were energized and cautiously optimistic about the Court’s review. Their optimism was tempered by what they considered the “total defeat” in the University of Michigan affirmative action cases.

  At 7:33 am the morning after the Court’s announcement in the Seattle and Louisville cases, Roger Clegg, president of the Center for Equal Opportunity, a non-profit, conservative organization that “promotes a color-blind society,” had posted a plan of action on National Review Online. Clegg had filed a friend of the court brief urging review in the school cases as had Sharon Browne of the conservative Pacific Legal Foundation. He now urged supporters to do the following: marshal amicus briefs by conservative educators and businesses to counter anticipated briefs from the left supporting race-based assignments; have the Republican base make clear to the Bush administration that any brief it files must be better than the “lackluster” briefs it filed in the Michigan cases; counter expected social science claims of benefits from diversity in education; and demonstrate that “discrimination like Seattle’s and Louisville’s” is not the rule by urging briefs from school officials “who reject this nonsense.”

  Clegg wrote that a majority of justices was inclined “to do the right thing.” However, he added, “because they are conservatives, they will be worried if they are striking down a policy that everyone else—education officials at the federal, state, and local levels; social science and education experts; and parents—apparently likes. So the case has to be made to these conservatives that, if they do the right thing, they will not be all alone.”10

  The battle over the legacy and meaning of Brown v. Board of Education had begun. The two school cases would create a chasm over race on the Roberts Court in a term dramatically different from the one rapidly drawing to a close.

  • • •

  After the June 5 announcement on the two school cases, the justices headed into the final three weeks of the 2005–06 term.

  Regardless of when a case is scheduled for argument in October through April, the toughest, most divisive decisions are issued most often in June, usually the last month in which the justices meet. In the seven terms of the Roberts Court, the justices have not completed their work in only two cases by their June departure: in 2009, what would become the highly controversial, campaign finance blockbuster Citizens United v. Federal Election Commission, in which they ordered reargument for the following September; and in 2012, reargument the next term in a case asking whether corporations could be sued for human rights violations committed abroad.

  The justices get their work done through a combination of tradition and peer pressure, according to Justice Ginsburg.

  “Each year, in mid-May, the Chief sends around a notice reminding us that all majority opinions are due June 1, or if June 1 is on a Sunday, then June 2, and all dissents, by June 15,” recounted Ginsburg in a 2009 interview. “In all the years that I’ve been a member of the Court, no justice has ever missed those deadlines no matter how much dillydallying goes on during the term. When it comes to the end of the line, June 1, all majorities [majority opinions] are in circulation. It’s great that we have that system, otherwise we’d never get away for the summer. The number of petitions goes up and up.”11

  Justice Kennedy is the unofficial opinion tracker. He lets the chief know if the Court is on pace to leave at the end of June.

  After a remarkable run, the Court’s unanimity in the Roberts Court’s first term broke down with the June decisions, as happens traditionally. Seven of the term’s eleven cases decided by 5–4 votes were issued in the last two weeks, including two that had to be reheard after O’Connor’s departure: the Kansas death penalty case and the Fourth Amendment “knock and announce” case. Another four cases were decided by votes of 5–3, and one by a vote of 5–2, because one or more justices did not participate.

  Of the sixteen cases decided by five-vote majorities, Kennedy was in the majority in eleven of them, more than any other justice. And in half of the sixteen where the justices divided along traditional ideological fault lines, Kennedy voted in four with the Court’s liberal wing and in four with the conservative wing—a sign of his clear emergence as the Court’s swing vote, replacing O’Connor in that influential position.

  Kennedy resists and dislikes being characterized as the Court’s “swing” vote. He is not the “swing” or decisive vote in every five-vote majority in which he appears. He actually leads the Court in certain areas of the law, such as in the First Amendment and voting rights law.

  One of the 5–4 votes in which Kennedy led the Court came in the last two days of the Roberts Court’s first term. League of United Latin American Citizens v. Perry was a complicated congressional redistricting challenge that involved the state of Texas.

  After the 2000 Census, a divided Texas legislature was unable to approve a new redistricting plan in 2001. Because of that failure, a federal court imposed a plan. In the next election, Republicans took control of the legislature and the governor’s office. They replaced the court plan in 2003, but only after three attempts. Democrats in the legislature captured national attention by fleeing the state twice, to New Mexico and Oklahoma. The new plan was the masterwork of Tom DeLay, then majority leader of the U.S. House of Representatives. DeLay’s undisputed goal was to replace all ten incumbent Democratic congressmen and add seven Republicans to the state delegation. He also sought to protect Republican incumbent Henry Bonilla by moving 100,000 Hispanic voters out of Bonilla’s District 23 into a new district and replacing them with white voters. Latino voters had been voting in increasing numbers against Bonilla.

  The DeLay plan worked: in the next election, the Texas delegation shifted from a 17–15 Democratic majority to a 21–11 Republican majority.

  The 2003 plan was challenged by the League of United Latin American Citizens and others on the grounds that the plan was a partisan gerrymander that violated the equal protection clause and the Voting Rights Act. Seven justices, led by Kennedy, upheld most of the plan, but the Roberts Court split 5–4 in finding that the plan’s treatment of Hispanic voters in the Bonilla district violated the Voting Rights Act.

  “The changes to District 23 undermined the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive,” explained Kennedy for the 5–4 majority. “The Latinos’ diminishing electoral support for Bonilla indicates their belief he was ‘unresponsive to the particularized needs of the members of the minority group.’ In essence the State took away the Latinos’ opportunity because Latinos were about to exercise it. This bears the mark of intentional discrimination that could give rise to an equal protection violation.”

  Chief Justice Roberts disagreed with Kennedy’s analysis that because the new district joined together two Hispanic communities of different geographic and socioeconomic status, it could not compensate for dilution of the Hispanic vote in the old district. He believed the new district created by the plan for the displaced Hispanic voters was an effective Latino majority district. Kennedy, he said, simply did not like the fact that the new district was created by drawing voters from two different areas of Texas—the Rio Grande and Austin areas.

  “I do not believe it is our role to make judgments about which mixes of minority voters should count for purposes of forming a majority in an electoral district, in the face of factual findings that the district is an effective majority-minority district,” wrote Roberts. “It is a sordid business, this divvying us up by race.” Justice Alito joined his dissent.

  His catchy turn of phrase about the “sordid business” of “divvying us up by race” resounded across the political spectrum and was repeated in news stories, opinion pieces, and blog posts. Just that one sentence offered the first hint of where he—and possibly
Alito—stood in the looming battle over the Seattle and Louisville school challenges.

  The next day, Thursday, June 29, was the final day of the term. On most final days, the justices emerge from behind their maroon velvet curtain with smiles and nods to those in the courtroom. There is almost a palpable sense of relief that a term has ended. But there were no smiles on June 29 and perhaps it was not entirely due to the enormity of the decision about to be announced.

  This Court looked tired, and with good reason. They had buried a chief with whom many of them had worked for decades. They had bid farewell to another highly respected colleague, a key vote in their most difficult cases and a behind-the-scenes force among them. They had welcomed two new justices—one in the middle of the term—onto a bench that had seen no changes in eleven years. And then there was Hamdan.

  The Court issued the defining decision of the Roberts Court’s first term, a decision in which Kennedy did cast the decisive vote: Hamdan v. Rumsfeld. Roberts did not participate in the case because in his previous position as a judge on the District of Columbia circuit court, he had considered and voted on this challenge to the Bush administration’s military commissions for trials of Guantánamo Bay detainees. He had voted to uphold the administration’s authority to create the commissions.

  Salim Ahmed Hamdan, a Yemeni citizen and onetime driver for Osama bin Laden, challenged the legality of the military commissions. The government contended that the president’s inherent executive powers and the Authorization for Use of Military Force, passed by Congress in the wake of the September 11 terrorist attacks, allowed him to establish the military commissions.

  In a 5–3 opinion by Justice John Paul Stevens, the majority disagreed with the Bush administration. Reading a summary of the decision from the bench in his even, calm manner, Stevens—joined by Kennedy, Souter, Breyer, and Ginsburg—first said that the Court had jurisdiction to review Hamdan’s case despite a law passed by Congress to block court review of detainees’ federal habeas petitions. That law did not apply to petitions pending at the time it was enacted, according to the majority. The Stevens majority then held that the commissions lacked authority to proceed because their structure and procedures violated the Uniform Code of Military Justice and four Geneva Conventions signed in 1949.

  As Justice Kennedy detailed in a concurring opinion: “These structural differences between the military commissions and courts-martial—the concentration of functions, including legal decisionmaking, in a single executive official; the less rigorous standards for composition of the tribunal; and the creation of special review procedures in place of institutions created and regulated by Congress—remove safeguards that are important to the fairness of the proceedings and the independence of the court. Congress has prescribed these guarantees for courts-martial; and no evident practical need explains the departures here. For these reasons the commission cannot be considered regularly constituted under United States law and thus does not satisfy Congress’ requirement that military commissions conform to the law of war.”

  Stevens stressed that the decision was narrow and pointed to a concurring opinion by Breyer in which that justice had said, “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.”

  Justices Scalia, Thomas, and Alito dissented in separate opinions. Scalia, also reading a summary from the bench, focused on the jurisdiction issue and argued that the Detainee Treatment Act of 2005 stripped all courts of jurisdiction to consider petitions filed by Guantánamo detainees. Thomas, who summarized his dissent as well, argued that a “heavy measure of deference” was owed the president when he exercised his power as commander in chief and that power was reinforced by congressional action—the Authorization for Use of Military Force. He warned that the decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy.”

  With Hamdan announced, the first term of the Roberts Court ended. Within days, scholars, litigators, and others offered identical assessments clothed in varying clichés. The first term of the new Roberts Court was marking time, treading water, in a calm before the storm, and in a pause.

  The term had shaped early as a potential legal blockbuster with cases involving abortions for minors, assisted suicide, religious expression, voting rights, wetland regulation, and the death penalty. Many of the key cases were disposed of narrowly or in splintered rulings. Kennedy’s vote kept his conservative colleagues from dramatically restricting the authority of federal regulators under the Clean Water Act of 1972, and he deserted them in a key part of the Texas voting rights decision.

  In the end, it was really only Hamdan that broke major ground.

  But two things were clear by term’s end. First, this was a more conservative Court than the one headed by Rehnquist, and the reason was Alito.

  According to one Court watcher’s statistical analysis of the justices’ voting patterns, Alito voted with his four conservative colleagues an average of 15 percent more often than O’Connor had, and he agreed with the four liberals an average of 16 percent less often.12 The number of unanimous decisions and 5–4 splits were on a par with the average number over the previous decade.

  Second, the new term that would begin just three months later promised to test Chief Justice Roberts’s commitment, in particular, to what he had emphasized during his confirmation hearings: narrow rulings and respect for precedents. Besides the Louisville and Seattle school race cases, already on the docket were challenges involving the federal ban on so-called partial birth abortions and the authority of the Environmental Protection Agency to regulate gases contributing to global warming. Waiting in the wings were cases concerning campaign finance, student speech rights, pay discrimination, and capital punishment of the mentally ill.

  The real first term of the new Roberts Court was about to begin.

  CHAPTER 5

  “There is no such thing [as a strategic leader of the Court or of a wing of the Court]. It may depend on a particular case. You have to listen to people and try to put it together.”

  —Associate Justice Stephen Breyer, 2011

  By 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 m
onths 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.