High court justice admits thoughts of recusal in suits

By <BR>By Jeremy Berkowitz
Daily Staff Reporter  On  October 20th, 2003

The University might have been in a much different situation
with its race-conscious admissions systems had U.S. Supreme Court
Justice John Paul Stevens made a different decision last April.

In a meeting last month, Stevens told a group of Chicago lawyers
that he almost recused, or removed, himself from making a decision
on the Grutter v. Bollinger case because former Law School Dean
Jeffrey Lehman was a law clerk of his in the early 1980s.

C-SPAN originally televised the speech. But very few media
outlets, including The Chicago Daily Law Bulletin, the Legal Times
and most recently The Washington Post wrote about the event.

Grutter was one of two lawsuits regarding the University's
admissions policies that the Supreme Court heard oral arguments for
in April. In June, the court decided that the Law School could use
race as one of many factors in admissions. But in the lawsuit Gratz
v. Bollinger, the court struck down the undergraduate point system,
which automatically gave 20 points to underrepresented

The day after oral arguments, Stevens expressed his concerns to
the other eight justices in a closed conference, but he was
persuaded to stay on.

If Stevens had not decided on the Grutter case, the resulting
4-4 decision would have been a victory for the University. But the
even decision would have left the future of race-conscious
admissions undecided and the University vulnerable to future

Curt Levey, spokesman for the Center of Individual Rights, which
aided the plaintiffs, said the CIR was aware that Lehman formerly
clerked for Stevens.

"I don't see it as discrediting to the decision of the court,"
Levy said. "It's up to Justice Stevens to decide for himself."

Assistant General Counsel Jonathan Alger said the University was
aware of Lehman's relationship with Stevens but never thought it
presented a problem.

Recusals on the court occur rarely. Usually twice a year, a
justice faces a conflict of interest in a pending case. Justice
Stephen Breyer recuses himself from cases that his brother, U.S.
District Court Judge Charles Breyer, hears. In a 1996 case
regarding the Virginia Military Academy's admissions policy,
Justice Clarence Thomas chose not to vote on the decision because
his son was then enrolled at the school.

Yale law Prof. Robert Post said there are various reasons why
justices remove themselves from certain cases.

"It might have something to do with how public the case is, how
much public scrutiny is," Post said, adding that former clerks of
the justices argue cases in front of the court all the time.

University of Virginia law Prof. A.E. Howard, a former clerk for
Justice Hugo Black from 1962 to 1964, said he later signed onto
many briefs submitted to the court.

"It never crossed my mind that (Black) would be tempted to vote
one way or the other because my name was on the brief," Howard
said, adding that he was confused why Stevens, who has served on
the court for almost 30 years, thought a recusal necessary.

"That is puzzling to me. It can't be the first time that one of
his clerks have been before the court," he added.

In his speech, Stevens also discussed his reasoning behind
supporting the use of race in admissions, even though he originally
voted against race-conscious admissions in the 1978 case Bakke v.
University of California Regents.

"Unlike the Bakke case, the same minimum standards applied to
both white and black students," Stevens said. "There was no concern
that there was a separate group that was let in below the basic

Stevens added that the amicus briefs filed in support of the
University by corporations and former military leaders made a deep
impression on him.

Howard said he was surprised Stevens discussed the case so soon
after the decision, adding that many Washington institutions have
become more transparent during the last 30 years.

"It's more porous than it used to be," Howard said.

Levey said he was surprised at Stevens' reasoning especially
that his support for diversity was based on the amicus briefs filed
by corporations and members of the elite.

Stevens "said that the amicus briefs on Michigan's review
revealed a broad national consensus on the wisdom of the diversity
rationale," Levey said. "By a 2-1 poll, Americans are against the
use of race of admissions."




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