The Supreme Court did not rule on any blockbuster cases this week, but it did accept an appeal in Evenwel v. Abbott, a case expected to become a blockbuster of its own when the court begins its new term in October.
Behind the case is Edward Blum. He is not himself a lawyer, or even a party in the case, but he’s made a name for himself getting the Supreme Court to hear landmark disputes — all of them with huge constitutional implications. Blum heads the Project on Fair Representation, a little nonprofit that funds litigation aimed at abolishing all distinctions and preferences based on race.
Here’s proof of his influence: In 2013 alone, the court decided two cases he helped engineer back-to-back: Fisher v. University of Texas and Shelby County v. Holder. One almost dealt a blow to affirmative action nationwide; the other effectively crippled the Voting Rights Act of 1965. The Roberts court’s appetite for these cases is proven, and Blum is the man bringing them.
Since Fisher didn’t exactly come out the way Blum would’ve wanted — the justices kicked the case back to an appellate court for a second look, and he lost again there — he decided to bring it back to the high court for a do-over. And he just may get his wish: Yesterday, the justices considered whether Blum’s case against the admissions policy at the University of Texas is worth reviewing again.
If the savvy Blum gets his way — veteran Supreme Court reporter Tony Mauro calls him a “mastermind” — he will effectively have two cases before the Supreme Court, ready for argument for when the court returns from its summer recess.
This is a remarkable success rate, though there’s nothing remarkable about how these cases come about. All of them seem to follow the same mold: Identify a legal principle, usually a settled equal-protection standard or statute from the ‘60s and ‘70s; recruit plaintiffs who are presumably “harmed” by the principle or its application to a specific policy; and then argue that it’s illegal to keep the principle, its application, or the policy in the books.
In November, for example, Students for Fair Admissions, a new advocacy group Blum formed, filed a lawsuit against Harvard University challenging its admissions policy. Like the Fisher case, the long game behind the Harvard suit is to target affirmative action, but using a slightly different vehicle: The allegation there is that the university “intentionally and improperly” discriminates against Asian-American applicants on the basis of their race, in violation of Title VI of the Civil Rights Act of 1964. Since Harvard, a private institution, receives millions in federal funds, the lawsuit is a creative way to get the Ivy League to open up its books and reveal its rubric for granting and denying admissions. And if a federal judge agrees that the process is discriminatory under existing law, there goes Harvard’s “holistic” approach to reviewing candidates for admissions. Title VI would survive; the admissions policy would not, ostensibly because receipt of federal funding matters more to Harvard than the way it gauges applicants for its ranks.
The Evenwel case is subtler yet no less fascinating. In it, Blum’s lawyers argue that Texas is in violation of the “one person, one vote” principle the Supreme Court enunciated in Reynolds v. Sims, a case from the civil-rights era interpreting the 14th Amendment. The argument is rather simple: The Constitution forbids the Texas Legislature from drawing legislative districts based on total population; instead, districts must be proportionately drawn on the basis of the total number of voters. To anchor the argument, Blum’s lawyers seize on a line from another Supreme Court case of the same era, one holding that “when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.”
On its face, Evenwel sounds like a slam-dunk case that only seeks fair representation for voters everywhere. Except the political reality in Texas and elsewhere is far different. Do elected officials only represent voters, or their constituents as a whole? What about children, noncitizens, people with mental illnesses, or those disenfranchised owing to felony convictions? Do they matter for map-drawing purposes? And what about “taxation without representation”? Does that figure into the analysis?
Though Evenwel doesn’t extend to congressional districts, where the Fourteenth Amendment explicitly controls, a ruling favoring Blum could have big implications in urban areas like New York or California, where a large percentage of Latinos and otherwise non-voting groups reside. And as the Washington Post’s Amber Phillips notes, such a ruling could “flip many district sizes on their head” — shifting voting power to suburban and rural areas, where voters are older, whiter, and tend to vote Republican.
Of course, you wouldn’t know any of this by merely reading the jurisdictional request in Evenwel. Blum’s color-blind appeal to the Supreme Court makes no mention of race, demographics, or even the political dynamics at stake. It is simply an appeal based on equality for all voters, under a principle the court itself formulated decades ago. We’ll know soon enough whether the justices buy this reasoning or see the bigger picture of Evenwel and its repercussions. But at least five of them have agreed with Blum before.