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Gearing Up for the New Term

Tony Mauro
Legal Times
10-06-2003

A year ago, the U.S. Supreme Court opened its term on a relatively quiet note, with few blockbuster cases on its docket.

Then came the affirmative action, gay rights, and still-pending campaign finance reform cases -- and the term went into the history books as one of the most important in decades.

On Monday, the Court again opens for business with a low-key docket that may, with few exceptions, stay that way.

One set of cases challenging the inclusion of the words "under God" in the Pledge of Allegiance could plunge the Court into "the middle of the culture wars" again, at the height of the presidential campaign, says Steve Shapiro, legal director of the American Civil Liberties Union. If that case fizzles, which it may as soon as this week, the 2003-04 term could shape up as one in which the justices will not blaze new trails but adjust its existing doctrine on issues like federalism and Miranda rights.

There are, however, at least three cases before the Court that hold promise as major rulings.

Vieth v. Jubelirer, No. 02-1580, could draw the Court deep into the "political thicket" that the late Justice Felix Frankfurter warned the Court to avoid more than 50 years ago. In its fractured 1986 ruling in Davis v. Bandemer, the Supreme Court said that disputes over purely political gerrymandering of political districts were justiciable, but only in rare and vaguely defined circumstances. The Vieth case from Pennsylvania asks the Court to set clearer rules for when gerrymandering can be challenged.

Pennsylvania Democrats challenged the 2000 redistricting, which helped produce a 2002 election that sent 12 Republicans and seven Democrats to the state's seats in the U.S. House of Representatives. If the Court decides to rein in gerrymandering in a substantial way, analysts predict that many more House seats nationwide would ultimately be opened to competitive races.

A second potentially big case is Locke v. Davey, No. 02-1315, a follow-up to the Court's 2002 ruling in Zelman v. Simmons-Harris, which upheld school voucher programs that allow public money to be used for private and parochial school tuition. The Locke case is a test of a Washington state law that bars the use of state scholarship money toward a theology degree. The question will be: If the First Amendment allows tax dollars to go to voucher programs under Zelman, does it also require that tax dollars be given to theology students?

Of course, the campaign finance cases collectively known as McConnell v. Federal Election Commission, No. 02-1674, could alter the political landscape by deciding whether any of the multiple parts of the McCain-Feingold campaign reform law violate the First Amendment. The cases were argued in a special session Sept. 8, technically part of last term, but as of Oct. 6, the rulings that result will be counted as decisions in the new term.

Beyond these, the rest of the Supreme Court's 50 cases docketed thus far left the experts who brief the press on the upcoming term grasping for metaphors.

At a Washington Legal Foundation preview Sept. 23, former Attorney General Dick Thornburgh called the upcoming term "plain vanilla," while the next day, at a National Legal Center for the Public Interest briefing, Christopher Landau of Kirkland & Ellis described it as a themeless "Jackson Pollock painting."

Never mind that the images conjured up by Thornburgh and Landau cannot easily co-exist. They were trying to avoid calling the 2003-04 term "boring," a word that should never be used to describe the Supreme Court. It did seem, however, that this term, the ever-growing industry of Supreme Court briefers ran into a bit of a problem: a shortage of quality raw material.

But the briefers were undeterred, and what may be a record number of interest groups and legal organizations plied the Supreme Court press corps with bagels, coffee and the occasional video to highlight the diamonds -- or at least the zircons -- in the rough of the Court's docket.

At AARP, the main focus was on General Dynamics Land Systems Inc. v. Cline, No. 02-1080, a reverse-age-discrimination case that pits "younger older" workers against "older older" workers. The rest of the briefing focused on less riveting ERISA cases.

At the National School Boards Association, much of the discussion centered on the Pledge cases and Locke v. Davey, with General Counsel Julie Underwood candidly voicing the wish that schools could stay out of such church-state battles. "Go do it other places, not in the school houses," she said. "We have other things to spend money on."

The ACLU's briefing looked ahead to a case the Court has not yet granted: Walters v. Conant, No. 03-40, which examines the federal government's effort to clamp down on California physicians who want to be able to recommend marijuana to patients suffering from AIDS and cancer. One of the ACLU's general counsel, Brooklyn Law School professor Susan Herman, also highlighted the Court's criminal docket, focusing on four Miranda-related cases that, overall, may compel the Court to decide how broadly it interprets its own 2000 decision in Dickerson v. United States, which for the first time put Miranda explicitly on constitutional footing.

With no direct women's rights cases on the docket thus far, the NOW Legal Defense and Education Fund (whose briefing this reporter could not attend) focused in its written material on Tennessee v. Lane, No. 02-1667. The case, brought by two paraplegics who had difficulties gaining access to state court facilities, tests whether states are immune from suits under Title II of the Americans With Disabilities Act.

At the Cato Institute, which has turned its Court preview into a daylong symposium and paperback book that also looks back at the previous term, the Vieth and Davey cases seemed to take top billing. Those were the focus also of People for the American Way, which e-mailed its preview to journalists.

Why do all these groups -- and more -- hold briefings in advance of the Court term? The ACLU's Shapiro says his organization had held breakfast briefings for a dozen years to "plant seeds" about cases the ACLU thinks is important and counter -- or pre-empt -- the government's spin on the cases.

The National Chamber Litigation Center has held term previews for 16 years, breakfast included, to help reporters understand the tough business cases they might otherwise overlook, says Senior Vice President Robin Conrad.

"We're not looking necessarily to be quoted," says Conrad, and often the chamber is not. But the chamber views the briefings as a resounding success. "Attention is paid to the cases, and they are better explained," Conrad says.

The Washington Legal Foundation's Glenn Lammi agrees. "We don't try to preach," he says, "but in the 12 years we've been doing this, I think there is more focus on the business cases."

STEVENS OFFERS AN INSIDE LOOK

The private notes of Supreme Court Justice John Paul Stevens have been leaked to the public, revealing how he framed the University of Michigan affirmative action cases during the Court's closed-door deliberations.

But there's no need for an independent counsel. The leaker was Stevens himself, speaking at the Chicago Bar Association last month. His remarks gave a rare glimpse into the Court's decision-making process in the headline-making law school case Grutter v. Bollinger.

At the outset, Stevens said, he seriously considered recusing himself from the case because his former law clerk Jeffrey Lehman was a co-defendant. Lehman, now president of Cornell University, was dean of the Michigan law school when the suit was brought and helped devise and administer the admissions policy at issue.

Stevens said he was concerned about "an appearance of impropriety" if he stayed in the case. Justices usually are understood to make recusal decisions individually, but Stevens in his remarks said he brought the Lehman question to the full Court. His colleagues "unanimously and very firmly said I should not disqualify myself," Stevens told the audience. He said the consensus was that in spite of past and continuing close relationships with former law clerks, it would be "quite wrong to deprive the public of a full Court" by recusing in such a circumstance.

Stevens also noted that he had recused in a previous landmark affirmative action case because of a friendship: the 1979 case United Steelworkers of America v. Weber. The case involved a program at the Kaiser Aluminum Co., which Stevens said employed a close friend in an executive job. Stevens also said that he had done legal work for the company before joining the Court.

Offhandedly, Stevens added that even though he did not participate in Weber, he was "totally convinced" that then-Associate Justice William Rehnquist's dissent had gotten the case right. Rehnquist said that Title VII of the Civil Rights Act could not be read to require anything but totally colorblind hiring practices.

Then Stevens launched into a reading of his conference notes, relating the arguments he made at conference with his colleagues.

His leading point, and a crucial one, was to buttress the precedential value of Justice Lewis Powell Jr.'s concurrence in the 1978 Regents of the University of California v. Bakke case. That concurrence –- in support of affirmative action but against quotas -- was joined by no other justice, but has nonetheless been viewed by many as the controlling opinion since the Court was otherwise deadlocked 4-4.

Stevens said he urged that the Court not undertake a "technical analysis" of the stare decisis value of Powell's writing in the case but instead consider "the extent of reliance" on Powell's view by major institutions ever since. What Stevens termed a "wealth of amici" told the Court about that reliance by industry, by Congress and even by the military.

As he had during oral argument, Stevens affirmed the importance of the brief filed by former military leaders in support of affirmative action. Stevens went on at length about the brief's assertion that affirmative action was necessary for a "better-functioning military" because it generated a diverse officer corps.

Incidentally, Stevens referred to the brief as the "Carter Phillips brief," even though the counsel of record was Virginia Seitz, Phillips' colleague at Sidley Austin Brown & Wood.

"In the final analysis," Stevens concluded, his argument boiled down to "who should decide" whether affirmative action should continue -- "the nine of us sitting in the chambers of the Supreme Court," as he put it, or "the accumulated wisdom of the country's leaders." That wisdom, he said, was convincingly shown by "the powerful consensus of the dark green briefs."

If the Court allowed affirmative action to continue, Stevens said, society could, if it wanted, cut back on it or end it. But if the Court had ended affirmative action on its own, he said, it would produce a "sea change" that could not easily be reversed.

Curt Levey of the Center for Individual Rights, which argued on behalf of Grutter in the Michigan cases, says he found several of Stevens' points remarkable.

When he heard Stevens' remarks on C-SPAN, Levey says he almost lunged at the radio when Stevens talked about the Weber case. If Stevens felt then that Title VII required colorblindness, Levey wonders, why didn't Title VI, at issue in the Michigan cases, also require race neutrality in admissions?

Levey objected to Stevens' remarks on stare decisis as well. "He talked about stare decisis in relation to Powell's concurrence, but he apparently didn't think much about that in Lawrence v. Texas, and that involved a holding, not a concurrence," says Levey. "It was out of left field." Lawrence, the gay rights case decided the same week as the affirmative action rulings, struck down Bowers v. Hardwick, the 1986 ruling that upheld sodomy laws.

As for the broad consensus Stevens spoke of, Levey says, "There was consensus among amici, but I don't know how he could look at opinion polls and say there was a broad consensus."

'BROWN' AT 50

The 50th anniversary of the landmark Brown v. Board of Education ruling is not until next May 17, but the celebration begins this week.

Howard University School of Law holds an opening convocation at noon Tuesday to launch a year of celebratory events. The keynote speaker will be Barbara Arnwine, executive director of the Lawyers' Committee for Civil Rights Under Law. Law students will make presentations about each of the five cases that collectively were the basis of the Brown ruling, and law Dean Kurt Schmoke will offer remarks.

Howard is a fitting locale for marking the anniversary, says professor Okianer Christian Dark, one of the organizers of the events. Many members of the legal team that challenged segregated schools in the Brown cases were graduates of Howard, which at the time accounted for more than 90 percent of the nation's African-American lawyers. In addition to the late Justice Thurgood Marshall, among the lawyers with Howard connections who played key roles were James Nabrit Jr., William Hastie, George Hayes, Spotswood Robinson III, Robert Carter and Julian Dugas. "It's amazing, when you look at the briefs, how many Howard people were involved," says Dark.

The Howard celebration continues through the fall and next year with lectures, joint events with Yale Law School and the Smithsonian Institution and special issues of the Howard Law Journal. Many of the surviving lawyers and civil rights leaders will participate. One speaker will be Leroy Rountree Hassell Sr., chief justice of the Virginia Supreme Court and the first African-American to hold the position. The symbolism in his presence is striking, says Dark, because Virginia was the origin of one of the Brown cases and one of the staunchest participants in the "massive resistance" that Southern states mounted after the Brown decision.

At all the events, says Dark, participants will look ahead as well as back. Quality education for all is still a goal, not a reality, she says. "The promise of Brown has been unfulfilled, even though its symbolism is great."

Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times, a law.com affiliate. He can be reached at tmauro@legaltimes.com.