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I prepared this entry for the South Texas College of Law Alumni Magazine. Some readers may find my Texas-spin on this year’s term of some interest.

This term, Texas had a very busy year at the United States Supreme Court. Two significant cases involving affirmative action and Miranda rights originated here in Texas. In Fisher v. University of Texas at Austin, the Supreme Court stopped short of finding that all uses of affirmative action was unconstitutional, but ruled that the state has a much higher burden to justify this use of race in higher education. In Salinas v. Texas, the Justices split on whether the police can comment on a suspect’s questions before Miranda warnings are provided.

Fisher v. University of Texas, at Austin

For nearly four decades, the Supreme Court has struggled with the question of affirmative action, and whether state schools considering race to admit students violates the Fourteenth Amendment’s guarantee of equal protection under the law. The Court’s first attempt to resolve this issue in Regents of the University of California v. Bakke in 1978 resulted in a splintered opinion, with competing rationales over the validity of affirmative action. Justice Powell’s concurring opinion, which would eventually prove to be the most influential, held that race could be used as one of many factors. However, race could not be used by itself to justify a quota, as was done in the University of California system. The Supreme Court revisited the issue of racial preferences for government contracts during the 1980s, but would not return to affirmative action in higher education until 2003.

That year, the Supreme Court decided two landmark cases involving the University of Michigan. In the first case, Gratz v. Bollinger, the Court found that Michigan’s undergraduate admission policy was unconstitutional, because it would award additional points to minorities based solely on their race. Because the students were not being assessed individually, but assessed based on their race, the Court found a violation of the 14th Amendment. However, in a companion case, Grutter v. Bollinger, the Court upheld Michigan Law School’s affirmative action program because it only used race as a “plus” factor among other factors. The Court stressed that diversity in higher education was a compelling state interest, and warranted this limited use of race. In the Michigan cases, the Court struck a balance on the scope of affirmative action. However, a few years later, one important factor changed. Justice Sandra Day O’Connor, who voted in the majority in both cases, was replaced by Justice Samuel Alito, who would join a 2007 opinion that would have eliminated all affirmative action.

This brings us to the case of Abigail Noel Fisher, who attended high school in Sugarland. Fisher, who graduated outside the top 10% of her class, was not guaranteed admission to the University of Texas at Austin under the so-called “Top 10% Plan.” Fisher applied to UT, but was not accepted. Claiming that it was unfair that minority applicants with lower grades were admitted due to affirmative action, Fisher filed a suit challenging the University’s admission policy. Both the district court, and the Fifth Circuit Court of Appeals ruled against Fisher, finding that UT’s admission policy was permissible under Grutter, as it considered race as one of many factors. Fisher appealed the case to the Supreme Court, setting up a showdown about the fate of affirmative action in the Lone Star State, and throughout the country.

The Supreme Court had several options in this case. First, they could have reversed Grutter, and ruled that all uses of affirmative action were unconstitutional. However, Fisher’s lawyers gingerly avoided the question of whether all affirmative action was unconstitutional, and did not ask the Court to overrule Grutter. Second, the Court could have found that UT’s affirmative action policy was unconstitutional, but approved of the Top 10% Plan which (on it’s surface) was race-neutral (though by its very design, it effectively set aside seats for students from predominantly minority high schools). Instead, the Court took door number three, holding that the Fifth Circuit Court of Appeals did not apply the correct level of scrutiny. In other words, the lower court too-readily agreed with the University’s stated rationales for using affirmative action to improve diversity. Instead, the court must closely scrutinize the UT’s motives, and ensure that no other race-neutral methods could achieve diversity.

Perhaps what was most unique about this holding was that the final vote was 7-1. With Justice Elena Kagan recused, only Justice Ruth Bader Ginsburg dissented. The majority opinion was written by Justice Anthony M. Kenendy, and joined by Chief Justice John G. Roberts, and Justices Antonin Scalia, Clarence Thomas, Steven G. Breyer, Samuel A. Alito, and Sonia S. Sotomayor. This broad consensus reflects something of a middle ground on the issue. Though, in reality, it just kicks the affirmative action can down the road. The Court of Appeals will likely have to remand the issue to the trial court to gather new evidence, and hold what will certainly be a lengthy, and controversial trial. Eventually, maybe in two or three years, the case may travel from the capital of our Republic to the capital of our other Republic. It’s anyone’s guess what the Court will do in Fisher II.

Salinas v. Texas

The second big Texas case this term began right here in Harris County. In 1992 Genovevo Salinas voluntarily went to the police station to talk about two murders. At the time, because he was not under arrest, he was not in “custody.” The police asked him a series of questions which he answered. When the police asked him about shotgun shells found at the scene of the crime, he stayed quiet. Salinas was ultimately arrested, and convicted of murder. During trial, the prosecutor commented on the fact that Salinas answered all of the police’s other questions, but was silent about the shells question, in an effort to to get the jury to draw a negative inference. After many appeals, Salinas argued that the prosecutor’s comments about this statement violated his rights under Miranda v. Arizona.

In a 5-4 opinion, the Court held that Salinas’s conviction was proper. The controlling opinion, authored by Justice Alito, and joined by Chief Justice Roberts and Justice Kennedy, held that because Salinas did not affirmatively invoke his right to remain silent at the police station, Miranda did not apply. Justices Thomas and Scalia concurred in the judgment, and wrote that the prosecutor could have commented on the silence even if the suspect had invoked his Miranda rights. The dissent by Justice Breyer, joined by Justices Ginsburg, Kagan, and Sotomayor, argued that conviction was improper, and in violation of Miranda.

This case has another special connection to South Texas. Alan Curry, a South Texas alum,  and Harris County’s longest serving Assistant District Attorney, successfully argued the case before the United States Supreme Court. I worked with the College to organize a moot for Alan before arguments. In fact, Curry is the second STCL alum to appear before the high court. Lynne Liberato successfully argued Granite State Insurance Company v. Tandy Corporation before the Nine in 1992. South Texas grads are batting a 1.000 at One First Street!

The Supreme Court Comes To South Texas

The road from Texas to the Supreme Court is a two-way street. For the second consecutive year, Chief Justice John Roberts will lecture at a South Texas study-abroad program sponsored by the Consortium for Innovative Legal Education. Last year, days after Roberts closed out the busy Supreme Court term, and his decision in NFIB v. Sebelius, he embarked for Malta. As I recount in my forthcoming book, Unprecedented: The Constitutional Challenge to Obamacare, before his departure, the Chief Justice joked that he was retreating to an “impregnable island fortress.” This summer, Chief Justice Roberts will teach abroad in Prague. Our students are very honored to learn with the Chief.

In addition, South Texas was very fortunate to host General William K. Suter, the Clerk of the United States Supreme Court, as our commencement speaker. Suter, who will retire from the Court this summer after 22 years of service, is an icon in Washington. Suter is former major general in the United States Army, and served as acting Judge Advocate General. Suter delivered an insightful address to the graduating students, stressing the importance of honesty, integrity, and hard work. Prior to the graduation, we were treated to a sitdown with General Suter and Admiral Guter, or Guter and Suter, as they styled it. The two had an open discussion about the law, the Supreme Court, the Constitution, and life. General Suter took many questions from the students, faculty, and alumni in attendance. It was an amazing event.

With that, the Supreme Court term is officially over. Until the first Monday in October when it starts all over again.

 

Tom Goldstein recorded a great ABA Journal podcast on marketing at the Supreme Court level. I transcribed (to the best of my ability) a few of the more interesting questions.

In response to a question about lawyers, who traditionally do not argue before the Court, wanting to keep a case on appeal to the Court:

The lawyer who has case below has very strong incentive not to bring in outside counsel, and have very strong incentive to argue at the Supreme Court . . . . When I started in 1998, it was not very competitive. Now there are 30 law firms with Supreme Court practices actively looking for cases. There are only 40-50 paying opportunities for petitioner or respondent in all of those cases. The competition is pretty accomplished, with Ted Olson, Seth Waxman, Paul Clement, Maureen Mahoney, Greg Garre, and others.

In response to a question about pitching lawyers who have their petition granted (around 10:45):

When I am trying to get involved in cases that are going to be argued at the Supreme Court [JB: those where cert is granted], there are so few of them, as opposed to cert petitions, where there are a lot of them. Then, I not infrequently still need to go out and approach the lawyers in those cases. Not always. I would say that about half the time for my argument, those are cases where I made an effort to get involved . When it comes to paying work of the firm, it is only 10%.

I think Tom’s answer suggests that half of his arguments come from soliciting clients, and of that 50%, 10% are paying customers, and the other 90% are pro bono. That would suggest the other half seek out Goldstein.  But it’s not clear from the context. To put that in perspective, according to these stats from Kedar Bhatia at Daily Writ, Tom has argued 25 cases from OT 2000-OT 2011.

In response to a question of how Tom makes the pitch:

It will vary. I do really try to have as non-threatening approach as possible. Because I think there is a felt sense by other lawyer that Supreme Court counsel will try to take over the case. That is not what I am going to do. I want to make sure that that relationship start well. I will almost always call the person. I find that works a lot better than emailing. If there is anyone i know that knows them, I will try to get an introduction to them. Meeting in person is the best of all worlds. But the difficulty of having that comes from courts across the country is that it is often impractical.

In response to a question about hesitancy to take nonpaying clients:

There are industries where I will hesitate more to take on a nonpaying case that will put me in conflict with an entire body of potential clients. For example, insurance, retail. We have relationships where clients may come to us at any time, and who we have done work for in the past. I don’t want to foreclose my doing more work for them, or take a position they will be frustrated with me, for a pro bono client. That is really the only client when I am really concerned. In general, I believe a balance between paying and pro bono client will work its way out. Doing pro bono is an opportunity to do good, but also an important opportunity for getting argument opportunities.

In response to a question of how Goldstein prepares for the “beauty pageants”:

I really try and do all the work myself, rather than asking someone else to do it for me. Because I think the would-be client expects me to do the talking in the meeting. I try to develop a theory of the case, how I would present the case on appeal, or in the Supreme Court. What if anything I would do it differently. I really try and learn a lot about it so that I can go in, without any notes, and talk if I have to for hours about the case about the case and the issues they are confronting and the strengths and weakness. I try to get them involved in the conversation. I’m not a big person about marketing materials, I’m not a big person talking about my past experiences. At the point they call me, invited me to have the opportunity to come in, they knew enough about me, they can see me as a lawyer worth hiring. I try to build a rapport with the decision makers. It is a very intensely personal process.

If they really feel like you are the person who is the busy private practitioner and you don’t even have the case, and you’ve spent the time to know a great deal about it, they believe you will do the work for them as their appellate lawyer, and they will develop a sense if you are good or bad at it, understand their case, understand them as a  client, understand their problems. I don’t have the sense that most lawyers who are involved in a beauty contest spend that kind of personal time. Rather they tend to go in and pitch themselves and start a conversation about the case. I want the would-be client to think about this is as a real substantive comment about the case and feel that they can continue the conversation by hiring them.

The “beauty pageant” is the SCOTUS-slang for the pitches made to the clients to get the coveted Supreme Court argument.

In Unprecedented, I discuss in glamorous detail the beauty pageant of how Jones Day was retained in NFIB v. Sebelius. Indeed, Jones Day was retained by National Federation of Independent Business over other prominent firms because of the quality of their pitch, and how much thought was given in advance. Karen Harned, the executive director of NIFB’s Legal Center, who made the decision to retain Jones Day relayed this story:

Harned told me she “didn’t really know the attorneys at Jones Day” before the interview, but was “blown away at the level of thought they had already given the case—a lot more than from other firms.” Harned was also impressed by the breadth of experience at Jones Day, which had recently hired a large number of Supreme Court clerks from both conservative and liberal justices.

I have more details about which firms were in consideration in the book. Harned’s reasoning reflects Tom’s sentiments exactly.  Joan Biskupic wrote about the beauty contest in a recent case from Guam.

In response to a question about whether lawyers are good at selling:

You have to build a personal connection. It is sales. Lawyers aren’t salespeople. They went to law school, not ot business school. They like to think about and write about problems. They don’t like to think in the terms of what it is the client is trying to figure out in hiring someone. Lawyers often to miscalculate, and say, what I should do is talk about myself, and why i am a good lawyer, and why i have experience in that area. I think the client knows enough about that at the point they bring you in in the first place. What they are really interested in is how you can apply that skill set and reputation.

Very interesting interview.

Based on tweets from SCOTUSBlog, it looks like this is the next clerk of the Court:

Update: Nope, not that Scott Harris. It’s the Scott Harris that is the Court Counsel.

Update 2: SCOTUSBlog links to the press release:

Scott S. Harris, Legal Counsel at the Supreme Court of the United States, has been named
the Court’s new Clerk, effective September 1,2013. Harris will be the 20th Clerk of the Court.
He will replace William K. Suter, who will retire on August 31, 2013 , after serving 22 years in
that position.
Harris has served as the Supreme Court’s Legal Counsel for 11 years. In that role, he has
managed the Court’s Legal Office, which provides support to the Justices on a variety of case­
related issues and legal services for the Court as an institution. In announcing the appointment,
Chief Justice Roberts stated, “Scott brings pertinent experience and proven judgment to his new
position. I am confident that he will continue the tradition established by our past Clerks of
professionalism and dedicated service to the Bench and Bar.”
Before joining the Court in 2002, Harris was an Assistant United States Attorney in
Washington, D.C., representing federal agencies and officials in civil litigation in the federal
courts. He was previously an associate at the law firm then known as Wiley, Rein & Fielding,
and he also served as a law clerk to the Honorable Paul V. Niemeyer of the United States Court
of Appeals for the Fourth Circuit.
Harris earned his B.S. from Yale University in 1988, and his J.D. from the University of
V irginia School of Law in 1993.

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