First Among Equals

“Colorful … part memoir, part layman's law book and part scholarly analysis … surveys the Court's positions on affirmative action, suspects’ rights, and other hot topics.”

—Philadelphia Inquirer

“Eminently readable and informative … I can say that this is not just the best treatment of the Court after Warren, but that it is likely to have that distinction for a long, long time.”

—Judge David B. Sentelle, United States Circuit Judge

“Written in a clear, nontechnical style accessible to a wide readership.”

—Publishers Weekly

“Excellent … informative … perceptive, focused … thoughtful.”

—Library Journal

^*The first ten amendments, in effect since 1791, constitute the Bill of Rights.
(back to text)

To Alice, my loving wife, who was as always beautifully supportive throughout this and countless other efforts, and to our dear, now-grown children, Randy, Carolyn, her husband, Cameron, and to our high-school senior, Cynthia, who will soon be studying the nation's highest court

P
REFACE

T
HURGOOD
M
ARSHALL THUNDERED
at me from the bench. In Justice Marshall's waning years on the Court, he spoke up only rarely in oral argument. But he was always focused. The eye contact was the dead giveaway. The great civil rights lawyer who led the legal fight against Jim Crow in
Brown v. Board of Education
was in the sunset of his career, but he was still sharp. The advocate could not escape his glare. He watched you, closely.

The nine justices who sit on our Supreme Court are remote from American society. They don't go on
Larry King Live.
They give occasional speeches, but mostly to legal audiences. In an age of celebrity, the only justice who might be recognized in the checkout line of a grocery store is the first woman ever appointed to the High Court, Justice Sandra Day O'Connor.

We know the justices from their appearances on the bench, when they hear and decide cases. That is what they do. With the exception of the chief justice, that is all they do. The Constitution inserts the chief into impeachment proceedings when the president is in the dock: He is to preside over the Senate trial. We saw a chief justice in this job in early 1999, when Chief Justice William H. Rehnquist presided over the Senate impeachment trial of President Clinton. Yet even during that historic event, the chief said little. He held no press conferences to explain the process, much less to set forth his own views about it. At the end of each trial day, the chief slipped back to the Court and thus away from the media glare.

The justices speak to the public in their written opinions. But before they decide cases and compose their opinions, they hear arguments from lawyers representing the contending sides. Seated behind a long bench in order of seniority, though always with the chief justice occupying the center chair, the justices permit each advocate at least to begin a sentence. But soon enough one justice, and then another, and another ask questions that are carried throughout the courtroom over the stereo Surround Sound public-address system.

The justices physically lean forward in their huge, large-backed chairs. They make clear that they are engaging the lawyer who hopes to win his case. At once they are both testing the advocate and exploring the issues at hand. You have to respond—quickly. Time at the podium is rapidly fleeting. Beating around the bush, stalling for a better moment, is never an option.

On this day, Justice Marshall was outraged. The question was whether the Oklahoma City public schools were still segregated. Almost forty years earlier, Marshall himself had stood where I was now, presenting the historic argument in
Brown v. Board of Education,
that public-school segregation was unconstitutional. Years ago, Oklahoma City schools had been ordered by the federal courts to dismantle the old, unconstitutional dual system of public education. The elected school board had carried out the order conscientiously and transformed the schools. Or at least that was what the federal judge in Oklahoma City had concluded. The U.S. Court of Appeals for the Tenth Circuit, which sits in Denver, had disagreed, holding that the school system had to remain under the supervision of the federal courts.

“General Starr, you don't think segregation is constitutional?” Fighting words, especially coming from this justice. The United States, which I represented as the solicitor general, had taken the side of the school board in asking to end the long regime of court-ordered supervision. Justice Marshall himself had once served as solicitor general, the government's top advocate in the Supreme Court. As the Justice Department's third-ranking (now fourth-ranking) officer, Thurgood Marshall had been in the hot spot many times, fending off attacks from justices who were hostile to the government's position.

Now it was my turn. During the allotted one hour, the argument centered on one question: What is the meaning of “segregation”? Is a minority-dominated school that reflects the racial makeup of its neighborhood still considered “segregated” under law? Or does it take more than demographics to reach that conclusion? Might government (state or local) have done something to cause the racial imbalance? Justice Marshall was interested in results, in numbers about race. He was resolute: The school board should not be permitted to come out from under federal court supervision.

The argument concluded, and the SG's team repaired to what I called the “recovery room,” a small office adjacent to the lawyers’ lounge (an amusing contradiction in terms) used by the government lawyers who argue, day in and day out, before the Supreme Court. The argument had been intense. As the postmortem was getting under way, the door to the public hallway opened. In walked Ronald Day, the lawyer for the Oklahoma City school board, escorting his client, the board's chair. An African American elected by the people of Oklahoma City, she thanked me effusively: “General Starr, thank you for helping us get our schools back.”

Here were two starkly competing visions. The locally elected school board wanted control, full control, over the school system. The federal judiciary had been resistant. Justice Thurgood Marshall made clear where he stood on the issue: not a chance, as far as he was concerned. If the racial numbers for individual schools didn't match those for the district as a whole, then the federal courts had to remain the cop on the beat, even almost forty years after
Brown.

Justice Marshall failed to carry the day. Eventually the Court, by a divided 5–3 vote, held in 1991 that the school board—located a thousand miles from the nation's capital—had satisfied the necessary conditions to eliminate the need for federal court supervision. Racial imbalance, without some causal action by the government, was not enough. Oklahoma City would once again have control of its schools.

Merits aside, the contrast between Marshall's view of the law and the school board's could not have been more dramatic. This clash of perspectives is the stuff of constitutional litigation, issues that reach the Supreme Court for what is almost always final resolution. That has been a large part of my professional world for many years and continues to this day.

I first thought about becoming a lawyer when I was in high school in the 1960s. What drew me toward the law was the Supreme Court and the sharply joined issues then before it—issues of the kind I found myself arguing years later in the Oklahoma City case. The Court has long held a strong fascination for me, and this book is a product of my reflections on the highest court in the land.

I have been very fortunate to have worked in capacities that enabled me to see the Court from a variety of perspectives. From 1975 to 1977, I was one of several freshly minted lawyers who clerked for Chief Justice Warren E. Burger. To say we saw the Court in its daily labor is an understatement. A “term” of Court runs from the first Monday in October through the end of the following June (when all remaining opinions are issued) and through the summer until the Court returns from its summer recess. It was our job during the two terms I served to read the papers filed in the cases the Court considered reviewing as well as, of course, those the Court actually accepted for review. We did legal research and helped with the opinion-writing.

From 1981 to 1983 (after a stint in private law practice), I served as counselor to William French Smith, President Reagan's first attorney general. As a matter of law, an attorney general oversees the solicitor general. I worked with Attorney General Smith and Rex Lee, the solicitor general during the first Reagan term, focusing on a number of high-profile cases before the Court. The urgency was to think about the task of persuading the Court—a quite different one from that in which I was engaged as a law clerk. As Smith's counselor, I also assisted him in carrying out a job attorneys general have been asked to do since the 1850s: Help the president select federal judges. In April 1981 (still recovering from John Hinckley's assassination attempt), President Reagan was informed by Bill Smith, in a private conversation in the residential quarters of the White House, of Justice Potter Stewart's intention to step down in the summer of that year. Sandra Day O'Connor was Reagan's eventual choice to fill the seat, and in our internal process I found myself reviewing every bit of information our team collected about her. At the attorney general's behest, I flew to Arizona, joined my Justice Department colleague Jonathan Rose, and interviewed then Judge O'Connor for the better part of a day.

In the fall of 1983, President Reagan appointed me to the U.S. Court of Appeals for the District of Columbia, one of thirteen courts of appeals around the country. These are the courts situated between the district or trial courts and the Supreme Court. During my five-plus years on the D.C. Circuit, there was seldom an issue on which the court above ours—the Supreme Court—had not pronounced, either directly or indirectly. It was daily fare for me and my colleagues, who included future Justices Antonin Scalia (whom Reagan appointed to the High Court in 1986) and Ruth Bader Ginsburg (whom President Clinton appointed in 1993), to adhere to the Court's precedents and to reason from them in cases raising new issues. Here I saw the Court from below, as a federal judge bound by the judgments of the justices.

In 1989, President George Bush asked me to return to the Justice Department as solicitor general. This is a small but special law office. There were only eighteen lawyers on our staff, yet in a given term we participated in as many as half of the cases the Court decided in those years (about one hundred, a number now down to about seventy-five). Often one of us argued before the Court—as I did in the Oklahoma City school-desegregation case. After fours years as SG, I joined a private law firm and mainly handled federal cases, including some reviewed by the Supreme Court. In 1994, I was appointed independent counsel in the Whitewater matter, which itself generated two cases ultimately reviewed by the justices. Since then, I have continued to practice before the Court as a “private” lawyer, as well as to teach constitutional law at New York University and George Mason University.

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