The Roberts Court: The Struggle for the Constitution

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Authors: Marcia Coyle
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he became known to Seattleites through election law activities. He was volunteer lead counsel in Washington State’s Lawyers for Bush-Cheney 2004, a national network of Republican lawyers ready to go to court if the presidential race became contested in any state, as it was in Florida in 2000. He also was one of the lead attorneys for the state Republican Party when it unsuccessfully challenged the outcome of the 2004 governor’s race, in which Democrat Christine Gregoire defeated Republican Dino Rossi by 129 votes.
    Today, Korrell sits on the Federalist Society’s national and Seattle executive boards. The society was founded in 1982 by law students who wanted to challenge the liberal orthodoxy on law school faculties and in the judiciary as well as the legacies of the Warren and Burger Supreme Courts.
    The society, supported financially by conservative foundations such as the John M. Olin and Sarah Scaife foundations, experienced phenomenal growth in its first decade, and its influence spread primarily through its network of outstanding conservative litigators, such as Theodore Olson, who successfully argued Bush v. Gore , and politically connected lawyers, such as former Reagan attorney general Ed Meese. Many of the top positions within the George W. Bush administration were filled with society members.
    Whether Chief Justice John Roberts Jr. was ever a society member provoked a mini-controversy during his Supreme Court nomination hearings in 2005. The Washington Post obtained a copy of the society’s Lawyers’ Division Leadership Directory for 1997–98, which listed Roberts, who was then in private practice, as a member of the steering committee of the Washington chapter. The Bush White House, at the time, saidRoberts had no memory of being a member of the society or its steering committee, although he did participate in some society activities.
    Korrell was a newly minted partner in Davis Wright and barely into his thirties when he attended his first meeting of the PICS group at the home of John Miller, one of Seattle’s former—and rare—Republican congressmen. The controversy over school assignments had not been on Korrell’s radar screen previously; his own children were not yet of school age. But when the call came from Dick Deran telling him that some parents wanted to meet with him, Korrell was interested. 3
    Notices for student assignments for the 2000 academic year already had been sent out by the school district. A court order halting the assignments was the only way to undo them, and Korrell considered it unlikely that a court would issue such an order.
    During the meeting at Miller’s home, Korrell laid out what the parents would have to do and the basis of a lawsuit.
    “This was all new to us,” recalled Brose, who was there with six or seven other parents. “This small group decided we wanted to go forward.”
    Korrell thought the law was clear and that the dispute would end quickly—either the school district would change the assignments or a court would rule for the parents.
    On the law, Korrell looked to Washington voters’ approval of the anti–affirmative action Initiative 200 in 1998, prohibiting preferential treatment on the basis of race and gender in public contracting, employment, and education. Initiative 200 was “spot on” for the school dispute, he thought. And Korrell examined the Rehnquist Court’s race rulings, which—although involving affirmative action, not school integration, and generally sharply divided rulings—“did not acknowledge some kind of diversity exception to the equal protection clause,” he concluded.
    “This seems pretty straightforward,” he told the parents. “We’ll make a demand, and if the district won’t either change its policy ormake some sort of accommodation for these particular parents, we will proceed in district court and get a decision pretty early on.”
    Korrell thought the school district would recognize it had made a mistake,

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