A Good Quarrel: America's Top Legal Reporters Share Stories from Inside the Supreme Court

Grutter v. Bollinger: An Argument for the Ages

Grutter v. Bollinger An Argument for the Ages argued april 1, 2003 greg stohr In 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was denied admission. The law school admits that it uses race as a factor in making admissions decisions because it serves a “compelling interest in achieving diversity among its student body.” The district court concluded that the law school’s stated interest in achieving diversity in the student body was not a compelling one and enjoined the use of race in the admissions process. In reversing, the court of appeals held that Justice Lewis F. Powell Jr.’s opinion in Regents of the University of California v. Bakke (1978)1 constituted a binding precedent establishing diversity as a compelling governmental interest suf‹cient under strict-scrutiny review to justify the use of racial preferences in admissions . The appellate court also rejected the district court’s ‹nding that the law school’s “critical mass” was the functional equivalent of a quota.| 98 1. 438 U.S. 265. To listen to passages from oral arguments indicated with , visit www.goodquarrel.com. ;)) among the best supreme court advocates, a common denominator is their intense preparation for argument. Before his appointment as chief justice, John G. Roberts Jr. was one of the best Supreme Court advocates of his generation, in part because of the hundreds of hours he would spend getting ready for his thirty minutes with the justices. Preparation is the difference between an advocate who can con‹dently call on an obscure precedent or facts when needed and one who appears to lack command over the subject matter. The prepared lawyer, when confronted with a tough question, has already thought through the logical implications of various responses. Indeed, the best lawyers know most of their answers in advance, having tested them repeatedly before colleagues and at moot courts. Maureen Mahoney spent months honing her arguments for the University of Michigan in Grutter v. Bollinger (2003),2 a dispute over the constitutionality of race-based university admissions. Retained by the university only after the appeals court arguments, she had to read thousands of pages just to educate herself about the record in the case. She devoted four twelve-hour days to reading the one-hundred-plus amicus curiae (friend of the court) briefs. As is her wont, she created outline after outline, laying out the factual and legal issues, and hundreds of note cards, each with a potential question and her planned answer. She took part in three moot courts. The university’s retention of Mahoney, a partner at Latham and Watkins in Washington, D.C., had been a controversial one in Ann Arbor . Michigan’s lead lawyer since the ‹ght began in 1997 had been John Payton of Wilmer, Cutler, and Pickering, also in Washington. Payton was an accomplished black litigator whose specialties included civil rights law. Mahoney was a white Republican with no civil rights background . She did, however, offer signi‹cant Supreme Court experience, having served as a law clerk to Justice William H. Rehnquist (before he became chief justice) and later winning ten of the eleven Supreme Court cases she had argued. In an unusual arrangement, Mahoney and Payton An Argument for the Ages | 99 2. 539 U.S. 306. would share top billing at the high court. Mahoney would represent Michigan Law School in its case, while Payton would defend the university ’s separate undergraduate admissions program in Gratz v. Bollinger (2003),3 a second argument held immediately afterward. Together, the cases marked the Court’s ‹rst look at university af- ‹rmative action since its landmark decision in Regents of the University of California v. Bakke. Mahoney was asking the justices to declare that campus diversity was a compelling interest that could justify the use of race as a factor in making admissions decisions. She also was arguing that the law school’s admissions policy, which considered ethnicity as part of a holistic review of each application, was “narrowly tailored” to meet that goal. Before Mahoney’s turn at bat, however, Kirk Kolbo, a Minneapolis lawyer representing rejected law school applicant Barbara Grutter, was up. Kolbo quickly drew skepticism from Justice Sandra Day O’Connor, who told him that “a university or law school is faced with a...