That Time Justice Sotomayor Answered Justice Alito’s Question Because the Lawyer Couldn’t

October 16th, 2013

I was struck in Schuette (more later on the merits) on how poor the advocacy was for both Respondents. Petitioner, Michigan Solicitor General John Bursch brought his A-Game. The WSJ Law Blog profiled him. But the lawyers for the Cantrell and Coalition Respondents were not good. I lost count of how many times the Justices said that they were not being responsive, or a Justice questioned their rendition of caselaw, or even when a Justice asked them to answer a question several times.

One of the more remarkable exchanges came during the Coalition’s argument where Justice Alito asked a perfectly sensible hypothetical about at what point does the political structuring doctrine kick in. The lawyer kept fighting the question and wouldn’t answer it. But it got to a point where finally the question was answered. But, I was reading the transcript late at night, and wasn’t paying close attention. It turns out Justice Sotomayor answered Justice Alito’s question. Then the lawyer agreed with Sotomayor, but departed from the helpful lifeline. And Alito called he rout for not agreeing with Sotomayor’s answer. Can you imagine? Alito faulting a lawyer for not agreeing with a Justice whose vote she needs to win!?

Here is the exchange:

JUSTICE ALITO: Well, that really — that really isn’t responsive to my question. Let’s say exactly what was done here is done at all of these levels. At what point does the doctrine kick in? When it goes from the faculty to the dean? From the dean to the president, et cetera, et cetera? Where does this apply?

MS. DRIVER: I think it depends on where it is that minorities face a heavier and special burden.

JUSTICE SOTOMAYOR: It can’t be that, because the normal political process imposes burdens on different groups. I thought the line was a very simple one, which is if the normal academic decision-making is in the dean, the faculty, at whatever level, as long as the normal right to control is being exercised, then that person could change the decision. So if they delegate most admissions decisions, as I understand from the record, to the faculty, but they still regularly, besides race, veto some of those decisions, and race is now one of them, then the Board of Regents can do that normally. So could the president, if that’s the way it’s normally done. It’s when the process is — political process has changed specifically and only for race, as a constitutional amendment here was intended to do, that the political doctrine is violated. Have I restated?

MS. DRIVER: You have, you restated it very well, and I agree with you in principle.

JUSTICE ALITO: I don’t see how that is consistent with Justice Sotomayor’s answer to my question. Don’t the people of Michigan have — don’t the people of Michigan have plenary authority?

MS. DRIVER: In this case, the particular -­ it’s — they are applying that plenary authority in -­ or in a way that is racially focused, and creates a political process that is disadvantageous to minorities

Then Breyer tried to help her out!

JUSTICE BREYER: I’m not saying instead of political process. Don’t let me put words in your mouth. Think what you think here.

After this I think Alito gave up.

Lyle reports that Driver was a last-minute substitute for George Washington (yes that is his real name), who was lead counsel on the briefs. I’m willing to cut her some slack, but this opening. Gah! Did anyone moot this?

MS. DRIVER: Mr. Chief Justice, and may it please the Court: We ask this Court to uphold the Sixth Circuit decision to reaffirm the doctrine that’s expressed in Hunter-Seattle, and to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case.

This is what proponents of affirmative action think but aren’t supposed to say at the Supreme Court. The Court’s precedents certainly do not support this. It totally ignores Grutter and Gratz, and Parents Involved. Scalia eviscerates her.

JUSTICE SCALIA: My goodness, I thought we’ve — we’ve held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only — only the blacks. But I thought we rejected that. You — you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?

MS. DRIVER: I think it is — it’s a measure that’s an antidiscrimination measure.


MS. DRIVER: And it’s a measure in which the question of discrimination is determined not just by -­ by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority.

JUSTICE SCALIA: And unless that exists, the 14th Amendment is not violated; is that right? So if you have a banding together of various minority groups who discriminate against — against whites, that’s okay?

MS. DRIVER: I think that -­

JUSTICE SCALIA: Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?

MS. DRIVER: No case of yours.

“Of yours?” Then which cases are we talking about? Maybe some law review articles? Or an ACS white paper?

I don’t think this case was lost on the arguments, but Respondent certainly did not gain any points.

Update: It seems that Driver announced on Friday, or maybe Monday, that she would be subbing in for Washington. Washington was in the Court during argument. The reason for the switch is unclear.