Detroit civil rights lawyer Shanta Driver made a last-minute decision to argue in a high-profile Supreme Court affirmative action case on Oct. 15 in part, she said, because so few African-American lawyers appear before the justices.
Speaking at a rally of affirmative action supporters in front of the court after the argument, Driver said that only one black lawyer—who spoke for 11 minutes—appeared last term before the justices. It was important, she added, for her as a black woman to argue in Schuette v., Coalition to Defend Affirmative Action to show the justices that someone “who really could speak for the movement” was making the case to save affirmative action.
Her comments, which have gone unreported, help solve the mystery surrounding Driver’s surprise appearance before the court in one of its most important cases of the term. Until the morning of the Supreme Court arguments, Driver’s law firm partner George Washington, who is white, was listed by the court as the one who would make the case for state programs that give a boost to minorities.
But just minutes before the session began, word came from the court clerk’s office that there was a substitution: Driver would argue instead of Washington. Both are with the Detroit firm Scheff, Washington & Driver. Driver is also a longtime civil rights activist and national chair of the named party she represented: the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, known as BAMN. Both Driver and Washington had argued the case before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in 2009. Washington argued when the case went before the full circuit en banc in March 2012.
As late as October 10, five days before the Supreme Court argument, Washington and Driver both did moot court rehearsals in Washington, D.C., stating that they had not yet settled on who would argue. It is extremely rare for that decision to be made so late in preparations.
Washington and Driver informed the Supreme Court of the switch to Driver on Oct. 14, the day before the argument, but the court was closed for the Columbus Day federal holiday. Other lawyers connected to the case were unaware of the change as late as the morning of the argument.
The dramatic last-minute switch was the talk of Supreme Court advocates the day of the argument and since. But Washington and Driver both declined to comment on the reason. “I don’t want to talk about it,” Washington said soon after the argument.
Driver did not respond to a request for comment. A response to a message sent to Driver’s Facebook page pointed to her post-argument speech outside the Supreme Court, available on YouTube.
In that talk, Driver cited the statistic, drawn from a May 2013 Associated Press article, indicating that in the roughly 75 hours of oral argument last term, only 11 minutes were presented by an African-American: Debo Adegbile, arguing in the voting rights case Shelby County v. Holder.
“I do think, particularly for the judges on the left, it was really important” to see a black lawyer arguing in support of affirmative action, Driver said to the audience. It was also important, she said, “that there was someone up there who was fighting, who really could speak for the movement and was of the movement.” Her colleague Washington was standing behind her as she spoke.
Driver suggested it was important, too, for her to present the court with arguments different from those offered to the court by Mark Rosenbaum of the American Civil Liberties Union.
Rosenbaum represented a different set of plaintiffs asking the court to strike down the Michigan constitutional amendment that bans state affirmative action programs at state universities and in state hiring. Both argued that the amendment had the unconstitutional effect of putting political change out of reach for those who favor affirmative action, while those seeking other kinds of preference, like favorable treatment for children of alumni, would have an easier time changing policy.
Rosenbaum, according to Driver, was arguing for “all of the establishment civil rights organizations” in favor of a “colorblind test” that would reject programs that discriminated against whites or blacks under the Fourteenth Amendment. Those arguments were “not helpful,” Driver said.
Instead, she told the court that the purpose of the Fourteenth Amendment was to “protect minority rights against a white majority.” Justice Antonin Scalia pounced on that argument, demanding that Driver give him “any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?” Driver replied, “No case of yours,” but she also insisted that minorities “need protection from a more privileged majority.”
In her speech afterward, Driver laughed off that exchange, focusing instead on what she saw as a positive line of questions from Justice Samuel Alito Jr. He asked her at what level it becomes impermissibly too difficult to change the system. Justice Sonia Sotomayor interrupted Driver’s answer to say that the line should be drawn at the level of a constitutional amendment. Driver agreed.
Alito picked up on that point when Michigan Solicitor General John Bursch rose for rebuttal. Passage of a constitutional amendment is “a big deal,” Alito said, so perhaps that should be the point at which it would be deemed too difficult for minorities to counter, depriving them of the ability to make political change.
Driver told her supporters afterward, “That was a more favorable question for our side than anything we were expecting from Alito.”
Contact Tony Mauro at firstname.lastname@example.org.