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Equal Protection but Not for Whites

3:31 PM, Nov 7, 2013 • By TERRY EASTLAND
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“Detroit civil rights lawyer Shanta Driver made a last-minute decision to argue in a high-profile Supreme Court affirmative action case on Oct. 15 in part, she said, because so few African-Americans appear before the justices.”

That is how Tony Mauro of the National Law Journal began his story of October 30 explaining why that last-minute decision was made. You’ll notice the story came well after the oral argument in Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, known as BAMN, which has challenged the constitutionality of that part of the Michigan civil rights initiative (approved by voters in 2006) that prohibits the use of race to either favor or disfavor applicants in admissions decisions in public higher education. Understandably, it took Mauro a while to find the answer to a question that had puzzled court watchers.

Driver’s law partner George Washington had been scheduled to argue the case for the “by any means” coalition, but not until minutes before the session began did the court clerk’s office learn that Driver, who is national chair of BAMN, would take his place. Neither Washington nor Driver wanted to comment on why the change was made, Mauro wrote. As it happened, however, after the argument Driver went outside the Court and spoke about it to a sympathetic audience. Driver’s talk was recorded and posted on YouTube by some unknown but apparently friendly party, perhaps to enable Driver to answer inquiries the way she did Mauro’s, who wrote that “a response to a message sent to Driver’s Facebook page pointed to her post-argument speech outside the Supreme Court, available on YouTube.”

In any case, to judge by what she said in her remarks on YouTube, that Washington happens to be white and Driver black clearly figured in the decision to switch lawyers. As Mauro wrote, “Driver cited [to her audience] the statistic, drawn from a May 2013 Associated Press article, indicating that in the roughly 75 hours of oral argument last term, only 11 minutes were presented by an African-American.” She then told her audience, “I do think, particularly for the judges on the left, that was really important, that there was somebody up there and who was fighting, who really could speak for the movement and was of the movement.” That “somebody,” had to be “of the movement” in a literal racial or ethnic sense, as Washington could not be, because he is white. And that somebody also had to be not only a BAMN-defined minority but also one that fights and really speaks for the movement, a definition that Driver satisfies, as a few minutes on a search engine will demonstrate. 

Ken Jost, editor of CQ Press, thinks that BAMN may have weakened its slim chance of victory by “playing the race card on game day in front of the Justices.” Maybe the justices noticed the sudden switch in lawyers from Washington to Driver, and maybe they noticed Driver’s post-argument comments outside the court. And maybe they were offended for one reason or another. But it’s hard to imagine that any votes actually changed on account of the switch.

Regarding Driver’s argument before the court, it did not get high marks from court watchers, as Jost reports in his post. Most remarkable was her willingness to say that the Fourteenth Amendment protects only minority rights against a white majority, a position that no case of the Court has ever embraced, as an exchange between Driver and Justice Scalia made clear. Just as remarkable was Driver’s belief, evident in her post-argument talk, that it was good litigation strategy to take that position, since it would “help bring that left-wing [of the court] to life [and] make them assert themselves”—as though the votes of the judicial liberals in the case will decide it, which they will not.

“I did great,” Driver told supporters. And in her world, if nowhere else, she did.

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