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At the end of two hours of oral arguments before the Supreme Court on April 1, the fate of affirmative action appeared to be in the hands of Supreme Court Justice Sandra Day O’Connor — just as it had seemed before the hearing began. While thousands of students and civil rights leaders demonstrated outside the Court, the focus inside the chamber April 1 was on O’Connor during the historic arguments over the University of Michigan’s affirmative action programs. Even other justices seemed to have her in mind as they parried with counsel. She asked numerous questions and gave comfort to both sides in the contentious debate. Twice she expressed concern about the open-ended nature of Michigan’s programs, hoping that someone would tell her that giving minorities a preference would be unnecessary sometime soon. No one did. But O’Connor also chastised the lawyer arguing against affirmative action for “speaking in absolutes” about the issue. “It isn’t quite that,” she added, suggesting that she has not made up her mind. She also noted that several of the Court’s precedents allow government to take note of race in granting benefits. Justice Anthony Kennedy, the other member of the Court often viewed as a swing vote, appeared less equivocal. He described Michigan’s effort to reach a “critical mass” of minority students as a “disguised quota” at one point, calling it a “synonym for a number” at another. As a result, Kennedy appeared likely to join Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas in opposition to one or both University of Michigan affirmative action plans. The four justices on the other side who will also be vying for O’Connor’s vote appeared to be John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. After the arguments, Theodore Shaw, assistant director of the NAACP Legal Defense and Educational Fund, said, “We learned nothing new today. It’s up to O’Connor, but we’re hopeful.” The arguments in the law school case, Grutter v. Bollinger, No. 02-241, and in Gratz v. Bollinger, No. 02-516, the challenge to the undergraduate admissions program, took place before a packed courtroom. An overflow crowd filled the lawyers’ lounge, and more than 100 reporters lined the gallery. Several justices’ spouses were on hand, as were several senators, the Rev. Jesse Jackson, former White House Counsel Lloyd Cutler, and the two future American Bar Association presidents, who are African-American: Dennis Archer, the former mayor of Detroit, and Robert Grey Jr. Jennifer Gratz, Patrick Hamacher, and Barbara Grutter, the three white applicants who are the named plaintiffs in the cases, sat in the last row of the Court’s public section. The intense interest inside the Court was not the only sign that the cases have historic importance. For only the third time in history — the other two coming in the litigation over the 2000 presidential election — the Court released audiotapes of the arguments as soon as they were over. Within minutes, the arguments were being aired on C-SPAN radio. Kirk Kolbo of Maslon Edelman Borman & Brand in Minneapolis argued on behalf of the white students in both cases, as did Solicitor General Theodore Olson, representing the United States. On the other side, Latham & Watkins D.C. partner Maureen Mahoney defended Michigan’s law school admissions program, which seeks a “critical mass” of minority students, while John Payton of Wilmer, Cutler & Pickering argued in favor of the undergraduate program, which gives minority applicants a 20-point boost. Kolbo’s main argument, repeated often, was that the equal protection clause of the 14th Amendment makes race an impermissible factor in state university selection practices. His clients have a “personal right,” he said, not to have their race count against them. Other kinds of preferences, such as those for children of alumni, do not implicate constitutional rights, he argued. The only kind of race-based preference he acknowledged was permissible was to remedy past discrimination. When Kolbo said race-neutral ways were available to achieve diversity, Justice Souter reacted: “You seriously believe that [those methods] would be anything but a surrogate for race?” Olson was even more blunt in his criticism of the Michigan programs, which he described as “thinly disguised quotas” that stigmatize minorities and perpetuate racial stereotypes. “They are using stereotypes to break down stereotypes,” he said. At the same time, Olson said he was “reluctant to say never” when asked if race could ever be a factor in government decision making. He posited, for example, a National Institutes of Health study of an illness that affected different races differently. Olson’s brief for the Bush administration pointed to race-neutral alternatives adopted in Florida, Texas, and California — plans that accept the top members of high school classes, for example. When Stevens asserted that the plans “depend on segregation in the lower schools,” Olson said there was no evidence of that. Mahoney argued that ever since the Court’s 1978 decision in Regents of the University of California v. Bakke, diversity had been accepted by the Education Department as a compelling state interest. “The education of all students will be enhanced,” she said. When Scalia asked her why, if diversity is so important, the university does not just lower its standards, she replied that nothing in the Court’s precedents compel universities to make a “choice between academic excellence and diversity.” Payton, defending the university’s undergraduate program, also listed the benefits of diversity, noting that Michigan is a “very segregated state,” in which young people of all races have little exposure to other cultures while growing up. When they come to the university, they live, learn, and play together. “They see things they may not have expected,” Payton said, asserting that the diversity in the student body benefits “every single student that comes through.” Payton also resisted Scalia’s suggestion that the university decide not to be an elite institution anymore. “We get to decide what our mission is,” said Payton, describing American higher education as “the envy of the world.” Justice Thomas, who rarely asks questions during oral argument, did speak up at the end of Payton’s presentation. He asked whether diversity would be “easier to achieve” if the university’s standards were less selective. Payton responded that some “unselective” schools in the Michigan system are “undiverse” as well. Throughout the arguments, the other justices seemed to give O’Connor wide berth whenever she asked questions, and at times seemed to be framing their own queries with O’Connor in mind. After O’Connor had wondered about an ending point for affirmative action during the early part of the arguments, Scalia helpfully raised the issue again later on. “Let me ask Justice O’Connor’s question,” Scalia said to Payton. “When does all this come to an end?” Tugging from the opposite direction, Ginsburg underscored the broad impact of a Supreme Court ruling in the Michigan cases, as if to remind O’Connor that her decision will not go unnoticed. Through other laws, Ginsburg suggested to Kolbo that what the Court decides in the Michigan cases could impact private universities and employers too. “This case is as much about Harvard as it is about the University of Michigan,” Ginsburg said. O’Connor’s vote could come down to how much weight she gives to Justice Lewis Powell Jr.’s concurrence in Bakke, in which he reasoned that diversity was a valid goal in higher education. In her forthcoming book, The Majesty of the Law, set for publication April 8, O’Connor extols Powell as her model on the Court: “For those who seek a model of human kindness, decency, exemplary behavior and integrity, there will never be a better man.” Among the more than 100 amicus briefs filed in the case, one clearly had an impact on several justices. The brief was filed on behalf of several former uniformed and civilian leaders of the military, who argued that race-conscious admissions policies by the ROTC and the service academies were essential to national security, that a diverse officer corps was needed to lead the diverse population of the armed forces. Queried by Ginsburg and Stevens about the brief, Kolbo said there was no evidence in the record that race is used in the military’s admissions policies. “Are you serious?” asked an incredulous Souter. Solicitor General Olson was also pressed by several justices to state his view on affirmative action at the service academies. He sidestepped the issue, stating that he had not scrutinized their policies. But he did say, “I don’t accept the proposition that black soldiers will only fight for black officers.” Former Undersecretary of the Army Joe Reeder of the D.C office of Greenberg Traurig, who co-authored the officers’ brief, says he was disappointed by Olson’s response: “Of course it is true that black soldiers will fight for white officers, but it is also true that it is of critical importance for the fighting force to see that the team they are fighting for is fair and promotes everyone.” Carter Phillips, the D.C. managing partner at Sidley Austin Brown & Wood, another co-author of the brief, says it was gratifying to hear several justices cite the brief. “The concerns of the military strongly influenced the thinking of some members of the Court,” Phillips says. “I think that is as much as an amicus can hope for.” Two justices who mentioned the military brief invoked Phillips’ name during the oral argument. Stevens referred to it as the “Carter Phillips brief,” and Souter followed up by calling it the “Phillips brief.” They were rare personal references, especially notable since Phillips, while listed on the cover of the brief, was not counsel of record — Sidley partner Virginia Seitz was. “In all fairness she worked tirelessly on the brief, along with about a dozen younger lawyers,” Phillips says. At another point in the arguments, Chief Justice Rehnquist also made a personal reference — this one to Mahoney. Apparently misunderstanding something Mahoney had said, Rehnquist asked her to clarify and addressed her as “Maureen.” Mahoney, who clerked for Rehnquist in 1979, gave him the answer and called him “Your Honor.”

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