Before he took on affirmative action and the Voting Rights Act in front of the U.S. Supreme Court last term, Bert Rein likened himself to Satchel Paige, the baseball player who started in the major leagues at age 42.
Rein, 72, was about to make his debut before the high court, after an extensive career in lower court litigation, mainly on business issues, with Wiley Rein — the law firm he helped create 30 years ago.
Now, after significant wins in both cases he argued, Rein said, "I'd go in and do it again" anytime. He's ready for another season in the majors.
Rein reflected on the cases — Fisher v. University of Texas and Shelby County v. Holder — after returning from a post-term vacation in Europe. He said he was never overwhelmed by the prospect of arguing two landmark cases in the same term before the nation's highest court.
"There's too much mystique around the court," he said. "I always thought this is not a mystery, it's a court. You can't be Daniel Webster and get up there for two days and talk anymore. This was doable."
Though he said the process was like that at any other court, Rein acknowledged that "you put more into it" when arguing before the Supreme Court. "It's an intellectual challenge," he said.
Justices gave Rein no forbearance because he was a rookie.
Especially during the arguments in the Voting Rights Act case in February, justices hammered him with questions about why traditional remedies for discrimination were no longer needed. Justice Sonia Sotomayor dominated his half-hour, prompting Chief Justice John Roberts Jr. to give Rein extra time for rebuttal.
'STAND AND WAIT'
Without naming names, Rein acknowledged that, at times, justices were "making speeches and not really looking for answers," so he would "just stand there and wait." But he knew going in that the Voting Rights Act challenge would provoke "a lot of emotions" from justices.
Asked about Justice Antonin Scalia's gasp-producing reference to "racial entitlements" during the Voting Rights Act argument, Rein replied, "I didn't say it." He said Scalia "may have thought the argument was getting out of bounds" and he wanted to make the point that no one should be entitled to "capture representation" through differential treatment.
Working with clients found by the Project on Fair Representation, Rein said he framed both cases carefully — aiming at a broad target in the Voting Rights Act case and a narrower one in Fisher.
Rein asked the court to strike down sections 5 and 4(b) of the Voting Rights Act. But on affirmative action he targeted the standard of review that the U.S. Court of Appeals for the Fifth Circuit in upholding the Texas program that considers race as a factor in admissions. Rein did not ask the court specifically to overturn Grutter v. Bollinger, the 2003 ruling that upheld affirmative action — except to the extent that Grutter could be read to permit the Fifth Circuit's relaxed standard of review of the Texas program.
"We attacked broadly but realistically" in the Voting Rights Act case, Rein said. He knew that an outright rejection of Section 5, the preclearance mechanism that forces covered jurisdictions to submit election changes to the Justice Department, would be tough to achieve. "We were unlikely to reach it," Rein said.
But he felt that "a majority of justices could coalesce around" striking down Section 4, which provides the formula for determining which jurisdictions are covered. "We realized that if we prevailed on the formula, Section 5 wouldn't work."
That is precisely what the court did, Rein said. "If we wrote the scenario beforehand, this is the scenario we would have written." For his client, Shelby County Ala., Rein said it was a clean win.
"They wanted relief from having to go through preclearance," he said. "They won't have to." Rein said he got a "nice call" from Solicitor General Donald Verrilli Jr., his adversary in the Shelby County case, after the decision came down.
Rein said other parts of the Voting Rights Act are still available for challenging discriminatory electoral actions, and as for updating and re-enacting the Section 4 formula, "the ball is in the court of Congress."
In a statement after the ruling, Attorney General Eric Holder Jr. said the decision was a "serious setback for voting rights," but should not change "strong bipartisan support" for the law in Congress. "The constitutionally protected voting rights of all Americans remain fully intact," Holder said. "And the right to vote, free from discrimination based on race or language, requires our vigilant protection."
As for Fisher, the affirmative action case, Rein was also satisfied with the ­outcome, even though it means more litigation on remand before the Fifth Circuit.
Rein had hoped the court would strike down the Texas affirmative action program outright. Instead, the 7-1 ruling sent the case back to the circuit for re-examination using strict scrutiny, a tough standard for the state to meet — a standard that Justice Anthony Kennedy said was required by the Grutter precedent. It left Grutter itself untouched, "taken as given" in Kennedy's words.
Rein was not surprised at the outcome, however. "We knew going in that Justice Kennedy might feel that under certain circumstances diversity could be a valid interest," he said. Kennedy ended up writing the decision in a way that six other justices, including some who support affirmative action, could approve. (Justice Elena Kagan recused.)
Rein will continue with the case as it heads back to the Fifth Circuit, and he is confident of victory there, too. "The Fifth Circuit cannot meet the standard the Supreme Court has set," he said. The outcome of the Fifth Circuit remand will dictate what happens next in the affirmative action battle, Rein said.
Supporters of the Texas program believe it could well withstand strict scrutiny on remand, and that the Fisher decision, by accepting Grutter as given, rebuffed Rein's approach and did not change the law on affirmative action significantly.
"The Supreme Court's decision is emphatic that the court accepted existing law, including Bakke and Grutter, as a given and it in no way casts doubt on the constitutionality of the university's admissions policy, which presumably explains why seven justices joined the decision," said Gregory Garre of Latham & Watkins, who argued for the university before the Supreme Court.
Garre said "the court quite clearly declined to take the steps that petitioner and her amici urged the court to take in dismantling or overturning existing precedent." Garre said the university, which has asked him to continue representing it on remand, is "confident" its program will be upheld again.
For his part, Edward Blum, director of the Project on Fair Representation, who backed both cases financially, said gambling on a Supreme Court novice in the form of Bert Rein, paid off. "This is the third time I have turned to Wiley Rein" for high-stakes litigation, he said. "I was delighted before and I was equally delighted with Bert in these two cases. The court did what we hoped they would do."
Contact Tony Mauro at firstname.lastname@example.org.