Supreme Court justices are entering the peak season for back-channeling.
This is when individual justices intensify their private huddling to try to resolve seemingly intractable differences and when a personal plea – out of sight of the others – might persuade someone to abandon a concurring opinion that undercuts the main decision for the court.
This is also when justices move faster but also become more apprehensive about how the final decisions may land with the public. Will they be seen as “partisan,” or like a group of “namby pambies” (as retired Justice Anthony Kennedy once put it in a personal note in an abortion case)?
The justices have about six weeks left in the annual session and still about 40 cases to resolve, including the future of race-based admissions practices at colleges, the protective scope of federal voting-rights law, an Andy Warhol copyright challenge and the validity of the Biden administration student loan forgiveness program.
The newly opened papers of the late Justice John Paul Stevens at the Library of Congress reveal several instances of private one-on-one conversations as cases from the early 1990s through 2004 were in the final weeks of negotiation. Combined with interviews and other research over the years, these papers, the most recent available in any justice’s archive, flesh out the portrait of the high court on deadline.
One especially salient example involves an affirmative action dispute from 20 years ago, Grutter v. Bollinger. That decision could be erased as the justices decide pending challenges to admissions practices at Harvard and the University of North Carolina.
Newly disclosed memos of internal debate from 2003 reveal that Stevens privately offered Sandra Day O’Connor some perspective for her 25-year limit on affirmative action – a point of contention in the current dispute – and separately persuaded David Souter to drop a concurring opinion, telling him, “on balance we really have a great victory.”
That O’Connor opinion, the first to command a clear five-justice majority for affirmative action, declared, “Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”
The current court, controlled by a 6-3 conservative supermajority, differs from the more moderate bench Stevens, O’Connor and Kennedy influenced in earlier years. But decisions issued this month have shown several cross-ideological alliances and likely reflected negotiations among small factions.
That’s often how the hardest cases come together in the end. Chief Justice John Roberts has been known to button-hole individual colleagues to achieve a desired outcome. Persuasion sometimes occurs with a visit to a colleague’s chambers or in a phone call, but the overriding way the justices communicate and coax is via memo.
Justices beseech each other to move material from the text of an opinion to footnotes, or to jettison it altogether. They watch for phrases that could suggest a partisan tone or cavalier attitude. And they keep their eye on the clock and calendar, with a self-imposed late June deadline.
After oral arguments and a preliminary vote in cases, the justices circulate notes and draft opinions as they hammer out the legal basis for a decision. Custom dictates that all nine justices, or the “conference,” as they are collectively called, receive copies of all correspondence between justices.
So on the current bench, for example, when Justice Neil Gorsuch sends a note asking for a change in an opinion being drafted by Roberts, he types at the bottom, “Copies to the Conference,” and all others can see the state of play.
Traditionally there has been a veneer of respect as the conversation unfolds. But that can fade as individual justices break off from the group, and a note is relayed to a select justice or two.
In a campaign finance regulation dispute from 2003, McConnell v. Federal Election Commission, Justice Ruth Bader Ginsburg confided to O’Connor, working with Stevens on the majority opinion, thoughts regarding a dissent penned by Kennedy: “At the ill-fated Italian Embassy dinner, you asked what I thought of Tony’s dissent: Strong on rhetoric, underwhelming on reasoning, …. Most disingenuous is the dissent’s purported championship of ‘ordinary citizens’ … belied by his dismissal of the perceptions and cynicism of the public as irrelevant.” (The memos in the Stevens files leave unanswered what exactly happened at that “ill-fated” dinner.)
By this point in the current 2022-23 session, the justices have taken a preliminary vote on all cases that were subject to oral arguments during the usual October- April sittings. Now the justices are finalizing their reasoning and watching for any shifting of votes.
It takes a majority of five to decide a case, and sometimes a revision sought by one justice causes another justice to abandon ship. That nearly happened in a 1996 Sentencing Commission case when Justices Antonin Scalia and Stephen Breyer dug in on their competing interests.
O’Connor, who was writing the court’s opinion, needed both of them. As she asked Scalia if he would accept the Breyer revision if his language was moved from the text to a footnote, she stressed that she was trying “to preserve a Court” majority.
Scalia declined to go along with her suggestion, and she wrote back, with copies all around, “I am truly sorry that we are at an impasse here. I remember many times since I have been here that a sentence or paragraph or a thought expressed in a majority draft opinion has been isolated or incorporated in a footnote, leaving the objecting Justice an opportunity to join everything but the offending portion.”
The conservative justice had a different take on their established practice, noting that if a justice finds the item “important enough, he or she will withhold joinder in the hope of keeping it out. … In any event, I cannot understand why my making the exclusion a condition of my join (instead of excepting) is any more unreasonable than Steve’s making the inclusion a condition of his join …”
Breyer backed down, and O’Connor sent around a note to all, saying, “Steve called me and graciously consented to my removal of the proposed sentence ….”
One especially relevant file now publicly available reflects the justices’ 2003 discussion on campus affirmative action, when O’Connor produced a majority to uphold a University of Michigan law school admissions policy that took race into account on an individualized basis.
The case affirmed – for the first time with a full five justices – the splintered bottom line of the Regents of the University of California v. Bakke decision. That 1978 decision had allowed race-based admissions to achieve a diverse student body but firmly rejected any quotas.
Conservatives have criticized the 2003 and 1978 precedents. Based on the tone of last October’s oral arguments challenging admissions practices at Harvard and the University of North Carolina, the precedents could be reversed in the next several weeks.
Stevens’ papers offer a window into the internal debate and nitty-gritty of the drafting process in 2003, including how Stevens guided O’Connor, why she cited a little-known 1977 essay from a Chicago bar publication and how justices to her left cautiously weighed whether to add any separate writings.
Stevens, as the senior justice among the five favoring the use of race in admissions, assigned the writing of the decision to centrist conservative O’Connor, whose vote (with four liberals) was clearly crucial.
(The power to assign an opinion is highly valued at the Supreme Court. When the chief justice is in the majority, that power falls to him; if he is not, it rests with the most senior justice on the prevailing side. For the assigning justice, it’s a way to influence the legal reasoning and keep a majority together. For the justice receiving the assignment in a closely watched case, it’s certainly a plum.)
The conclusion of O’Connor’s opinion in Grutter v. Bollinger has been particularly debated through the years. She referred to a “termination point” for racial practices to achieve diversity and broader equality. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” O’Connor wrote.
The court’s first woman justice, who was appointed in 1981 and retired in 2006, had raised the notion of a time limit during oral arguments in the case.
Seeing that O’Connor incorporated the durational-limit idea into her early draft opinion, Stevens decided to write her a personal note.
He first told her she had his vote no matter what she added to the final opinion, and he complimented her early draft as “really first rate.”
But then, in his main order of business, Stevens urged her to look at a 1977 essay he attached to his personal note. “It strongly supports the durational requirement in the last part of your opinion. One of its authors, Nathaniel Nathanson, was a Brandeis clerk and taught me constitutional law at Northwestern. The entire article is consistent with your analysis, and some of his comments on page 292 might be worth including in a footnote.”
The next day, after O’Connor had sent out a new draft with some of the essay’s sentiments, Stevens wrote back to O’Connor: “Many thanks for the changes. I don’t mean to be a nuisance, but I want to point out that the sentence in the Nathanson article immediately following the one you quoted reads as follows: ‘But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all.’ Including that positive statement would really add strength to the opinion. Again, this is just a suggestion, but the one sentence that you do quote by itself seems to convey a somewhat different message.”
O’Connor ended up quoting that fuller section from the article co-authored by Nathanson and Casimir Bartnik entitled “The Constitutionality of Preferential Treatment of Minority Applicants to Professional Schools”: “It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all.”
The only member of the 2003 court still on the bench is Clarence Thomas, who dissented, contending the policy demeaned blacks, as it violated the constitutional guarantee of equal protection.
“I believe blacks can achieve in every avenue of American life without the meddling of university administrators,” Thomas wrote.
Thomas also said that he regarded O’Connor’s goal of a 25-year conclusion to be part of the bottom-line “holding” of the majority: “I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years.” (Other justices, however, disputed that hard deadline.)
Liberal justices themselves were torn on offering separate writings, as some of the back-channel correspondence shows.
Within three days of the June 23, 2003, release of the case, Souter was still determined to write a concurring statement to O’Connor’s majority opinion. In part, he wanted to separate himself from what he regarded as the “affirmative tone” in the Grutter opinion for her separate vote in a companion case (Gratz v. Bollinger) invalidating the University of Michigan undergraduate screening process that used a racial point system, rather than individual assessments, as was the law school’s practice.
Stevens privately urged Souter on June 20 to join O’Connor’s Grutter decision without any caveat. He noted that Souter was separately protesting the Gratz ruling (“your excellent dissent”).
But Stevens also stressed, “it seems to me that your separate writing, though brief, diminishes the force of Sandra’s powerful opinion. If either one of us had written it, we would have said much more, but on balance we really have a great victory.”
“I accept your suggestion,” Souter wrote back that same June 20 day, “and, after touching base with Ruth, have written to Sandra saying that I withdraw the separate concurring paragraph.”
Ginsburg, joined by Stephen Breyer, however, continued with a separate concurring statement – to clarify their view on any 25-year limit, given “that many minority students encounter markedly inadequate and unequal educational opportunities.”
“From today’s vantage point,” Ginsburg concluded in her concurrence, “one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.”
In a matter of weeks, this Supreme Court will decide if sunset has arrived, even at 20 years, not the 25 O’Connor envisioned.