[Editor's note: This entry was written before the Supreme Court's decision on the Michigan affirmative action case was announced this morning.]
I am pleased that the idea of doing another end-of-the-term exchange about the Supreme Court lured you away from the maternity reserve list. Is Coby as beautiful at two months as he was in his newborn e-mail pictures? More importantly, will being a new parent soften your sometimes acerbic pen? ("Oh my god, that helpless oral advocate I ridiculed last term was once some mother's suckling baby! What was I thinking?") Being a parent made me a little less judgmental, I think. We'll see about you.
I should note at the outset I was involved in one way or another in 20 of this term's cases as part of my day job at O'Melveny & Myers; I'll try to remember to disclose my partiality to our readers whenever relevant. I take comfort in knowing that we can always rely on the disinterested, cold-eyed objectivity you journalists always bring to any subject.
Which leads me to this week's expected decisions. Of the 10 cases remaining undecided, the Michigan affirmative action cases, the Texas homosexual sodomy case, Nike's free speech claim, and California's holocaust insurance decision should all be of considerable interest. I'll start with the two Michigan cases (I filed a brief supporting the Michigan law school's policy) even though they could be announced before most readers see this. My observations this morning are less about what the court should decide than how they ought to go about deciding.
The question I've been pondering is whether members of the Supreme Court ought to decide cases as nine individual justices or as a group striving to reach a consensus judgment "of the court." The accepted view seems to be the former: Each justice should come to the decision he or she believes to be the "right" legal answer in a case and then reveal his or her conclusion to the others. It's sort of like a nine-handed version of "rock, paper, scissors." These votes are added up and a result appears. What the rule of law is for the future is often elusive. But, we assume, that is just what necessarily happens when nine individuals, each acting faithfully to his or her individual oaths, cast nine individual votes.
But is that the (only) proper conception of the judicial role? Why not view the obligation to decide faithfully as an obligation of the court as a whole? Each justice, under this view, would strive to join a consensus on a position that reflects the center of gravity of the court. Dissent would still be in order where a justice believed his or her colleagues to be fundamentally wrong, but more often dissent would yield to consensus around a result joined in by all those who think it less than clearly erroneous.
Suppose in the two Michigan cases—one from the law school, one from the undergraduate college—the court was divided 4-4-1, with four justices believing that both are unconstitutional and four believing each passes constitutional review. One remaining justice holds the balance of decision. Whatever that justice decides for himself or herself would resolve the case but perhaps settle very little for very long.
Is it not possible (and perhaps desirable) that, say, six justices could come together on a single opinion resolving the two cases that reflects a consensus of that group as a whole, while not necessarily reflecting the individual views of each of those who join? For reasons I may have a chance to elaborate later this week, the fine line at the center of the court may fall between the undergraduate and law school programs. It is possible that the undergraduate program is more vulnerable on the narrow grounds that race is a factor worth 20 additional points in the admissions process. If a person of complex racial grandparentage applies to the college, someone (usually the applicant) has to decide whether that person is in fact "in" or "out" of one of the designated racial groups. There is no way to give eight or 13 points for race. No such determination need be made under the law school's system. Each file is read as a whole and each member of the admission's committee asks what this person's experience, including racial experience, adds to the mix of our class.
A decision of the court, joined by a majority, and setting out limits on the use of race, without eliminating it as a factor, may well reflect the collective consensus of this court as a whole. And perhaps such a process would sometimes produce justice, even if it did not reflect the exact views of any individual justice.
Talk to you soon,