Fifteen years after the University of Michigan went toe to toe in the Supreme Court defending affirmative action, racial demographics at the University remain largely homogenous. The University chapter of the American Constitution Society hosted a symposium Wednesday evening to reflect on the case’s history and strategize around affirmative action in honor of the 15th anniversary of the landmark Grutter v. Bollinger Supreme Court case.
Grutter v. Bollinger upheld the Law School’s affirmative action policy in a 5-4 decision. The ACS invited Law School Dean Evan Caminker and appellate lawyer Maureen Mahoney to speak as key figures in bringing the case to the Supreme Court.
The 2003 case drew on the precedent of the 1978 case Regents of the University of California v. Bakke, which ruled affirmative action policies legal but racial quotas unconstitutional.
Caminker, who specializes in constitutional law and clerked for former Supreme Court Justice William Brennan, oversaw the development of the Law School’s case. Caminker discussed the targeted strategy the team used in arguing their case.
“The critical factor when we approached the Supreme Court, not surprisingly, was to figure out how to strategize the case, how to present the case in a way that would convince the court to rule in our favor,” Caminker said. “In a difficult constitutional case, it’s not enough to convince the court that you are right on the law. What you have to convince the court that the court wants to rule in your favor, in this case we had to convince Justice O’Connor.”
Mahoney, head litigator in the case, has argued 21 cases in front of the Supreme Court and clerked for Supreme Court Justice William Rehnquist. She was speculated as a potential Supreme Court nominee in 2005. Mahoney agreed with Caminker their greatest challenge in winning the case was in convincing Justice Sandra Day O’Connor.
“The strategy always was the way to persuade O’Connor was to persuade her that Powell was right, that this diversity was a compelling interest and that these programs did help the nation,” Mahoney said. “But what it really meant was that in order to persuade her we had to wrap ourselves around Bakke.”
Mahoney credited the success of the case to the support of former President George W. Bush and former Secretary of State Condoleezza Rice. The administration agreed diversity was an important issue, leading the White House to issue a press release detailing its place in higher education.
“I suspect that we owe our biggest break in the case to President George W. Bush and Condoleezza Rice,” Mahoney said. “The one must-win issue, the issue that we could not lose was that diversity was a compelling interest — it was going to be about how to come up with a program that would satisfy that interest.”
Mahoney explained how hard she worked on this case. She wrote over 300 potential response questions and conducted three moot courts with a panel of experts, including the current Chief Justice John Roberts Jr. She said at the end of the case, former Chief Justice William Rehnquist called her by her first name, an accomplishment in her book.
“I never worked harder on an argument and all arguments are stressful … but this one had the sense that the whole country was watching,”Mahoney said. “I think I spent more than 200 hours just preparing for the argument and what I did and what (audience lawyers) have to do is you have to spend your time actually trying to anticipate any possible question that someone may ask you.”
Out of the 21 Supreme Court cases Mahoney has argued, she considers this case one of the highlights of her legal career.
“I really want to thank Evan and the University of Michigan for giving me this opportunity,” Mahoney said. “It was just a chance do one of the most challenging important cases an advocate could ever hope for and I know it was a difficult choice for them.”
Mahoney recognized the University’s choice to hire her for this case was challenging. As a Republican and active member of the conservative community, civil rights lawyers were skeptical of her ability to argue the case. Caminker advocated for Mahoney in the hiring process because of her sincerity and drive to win.
“We interviewed four or five of some of the best moral advocates and brief writers in the country at the time and I ended up championing Maureen,”Caminker said. “I thought she gave us the best chance of winning partly because I think she believed in the case and I’m not sure the others did and Maureen was explaining to us why the case was important to her personally and the country. I thought at the time that she sounds really sincere and that’s why I want to hire her, and if she’s not sincere she’s doing a damn good job.”
Three years after the University’s victory, Michigan voters approved Proposal 2, a ban on affirmative action practices in state universities and colleges. Black enrollment at the University plunged from 10.4 percent of the student body in 2002 to 6.4 percent by 2008. Administrators have explored pipeline programs and expanded recruitment efforts through initatives like Wolverine Pathways and the Go Blue Guarantee, but current metrics still hover around 4 percent.
Law student Austin DelPriore said he looked forward to coming to the symposium as the case pertained to such an important part of law and the public.
“I’m genuinely interested in this, being such a consequential case,” he said. “It’s both fascinating being a law student and a general member of society and it’s a very impressive panel.”