Stevens offers an inside look

By Tony Mauro

Legal Times, October 6, 2003

The private notes of Supreme Court Justice John Paul Stevens have been leaked to the public, revealing how he framed the University of Michigan affirmative action cases during the Court’s closed-door deliberations.

But there’s no need for an independent counsel. The leaker was Stevens himself, speaking at the Chicago Bar Association last month. His remarks gave a rare glimpse into the Court’s decision-making process in the headline-making law school case Grutter v. Bollinger.

At the outset, Stevens said, he seriously considered recusing himself from the case because his former law clerk Jeffrey Lehman was a co-defendant. Lehman, now president of Cornell University, was dean of the Michigan law school when the suit was brought and helped devise and administer the admissions policy at issue.

Stevens said he was concerned about “an appearance of impropriety” if he stayed in the case. Justices usually are understood to make recusal decisions individually, but Stevens in his remarks said he brought the Lehman question to the full Court. His colleagues “unanimously and very firmly said I should not disqualify myself,” Stevens told the audience. He said the consensus was that in spite of past and continuing close relationships with former law clerks, it would be “quite wrong to deprive the public of a full Court” by recusing in such a circumstance.

Stevens also noted that he had recused in a previous landmark affirmative action case because of a friendship: the 1979 case United Steelworkers of America v. Weber. The case involved a program at the Kaiser Aluminum Co., which Stevens said employed a close friend in an executive job. Stevens also said that he had done legal work for the company before joining the Court.

Offhandedly, Stevens added that even though he did not participate in Weber, he was “totally convinced” that then-Associate Justice William Rehnquist’s dissent had gotten the case right. Rehnquist said that Title VII of the Civil Rights Act could not be read to require anything but totally colorblind hiring practices.

Then Stevens launched into a reading of his conference notes, relating the arguments he made at conference with his colleagues.

His leading point, and a crucial one, was to buttress the precedential value of the late Justice Lewis Powell Jr.’s concurrence in the 1978 Regents of the University of California v. Bakke case. That concurrence — in support of affirmative action but against quotas — was joined by no other justice, but has nonetheless been viewed by many as the controlling opinion since the Court was otherwise deadlock ed 4-4.

Stevens said he urged that the Court not undertake a “technical analysis” of the stare decisis value of Powell’s writing in the case but instead consider “the extent of reliance” on Powell’s view by major institutions ever since. What Stevens termed a “wealth of amici” told the Court about that reliance by industry, by Congress, and even by the military.

As he had during oral argument, Stevens affirmed the importance of the brief filed by former military leaders in support of affirmative action. Stevens went on at length about the brief’s assertion that affirmative action was necessary for a “better-functioning military” because it generated a diverse officer corps.

Incidentally, Stevens referred to the brief as the “Carter Phillips brief,” even though the counsel of record was Virginia Seitz, Phillips’ colleague at Sidley Austin Brown & Wood.

“In the final analysis,” Stevens concluded, his argument boiled down to “who should decide” whether affirmative action should continue — “the nine of us sitting in the chambers of the Supreme Court,” as he put it, or “the accumulated wisdom of the country’s leaders.” That wisdom, he said, was convincingly shown by “the powerful consensus of the dark green briefs.”

If the Court allowed affirmative action to continue, Stevens said, society could, if it wanted, cut back on it or end it. But if the Court had ended affirmative action on its own, he said, it would produce a “sea change” that could not easily be reversed.

Curt Levey of the Center for Individual Rights, which argued on behalf of Grutter in the Michigan cases, says he found several of Stevens’ points remarkable.

When he heard Stevens’ remarks on C-SPAN, Levey says he almost lunged at the radio when Stevens talked about Weber. If Stevens felt then that Title VII required colorblindness, Levey wonders, why didn’t Title VI, at issue in the Michigan cases, also require race neutrality in admissions?

Levey objected to Stevens’ remarks on stare decisis as well. “He talked about stare decisis in relation to Powell’s concurrence, but he apparently didn’t think much about that in Lawrence v. Texas, and that involved a holding, not a concurrence,” says Levey. “It was out of left field.” Lawrence, the gay rights case decided the same week as the affirmative action rulings, struck down Bowers v. Hardwick, the 1986 ruling that upheld sodomy laws.

As for the broad consensus Stevens spoke of, Levey says, “There was consensus among amici, but I don’t know how he could look at opinion polls and say there was a broad consensus.”