4 - Who is Fighting the Fight?

Summary

Introduction

In the 1978 Bakke US Supreme Court case, the lead attorney for the university and in support of affirmative action was Archibald Cox, a prominent lawyer with a great deal of experience with the Court (Stefoff, 2006). Cox was a legal scholar and faculty member at Harvard Law School and, for four years, served as Solicitor General under President John F. Kennedy. Kevin McGuire (1993) described Cox as a legal elite who, at the time, had more experience litigating in front of the Court than anyone else in history. The lawyer representing Bakke, Reynold H. Colvin, conversely had much less experience and had never litigated a case at the level of the Supreme Court (McGuire, 1993). Colvin practiced law in a private firm outside the Washington beltway. While credentialed, McGuire (1993) posed that Colvin was not prepared to handle a case of such magnitude because he was focused on results rather than the broader scope of the policy, particularly during oral arguments. Furthermore, Colvin chose not to include more seasoned lawyers to co-litigate the Bakke case. While Bakke was not able to afford the long drawn-out affair, Colvin remained his counsel without compensation because of the reach and prestige of the case.

A notable shift in the mode of representation can be seen in the Hopwood (1996) and two University of Michigan (2003) Supreme Court cases on affirmative action in higher education. For the Hopwood case, the University and state were defended by several lawyers, including Betty R. Owens, Beverly Gayle Reeves, and Charles Alan Wright, to name a few. Unsurprisingly, these lead attorneys were either from private firms or employed as faculty at the University of Texas at Austin. Cheryl Hopwood, on the other hand, was represented by several lawyers, including the lead attorney Joseph A. Shea, Jr. Shea Jr was associated with the Center for Individual Rights (CIR), a self-described non-profit public interest group with a conservative agenda that sought to defend “individual liberties against the increasingly aggressive and unchecked authority of federal and state governments” (Green, 2004, p 737). The CIR recognized both the opportunity provided by the case as well as by Hopwood, a student whose academic record and community service was quite notable and exemplary.