Bert Rein returns to the Supreme Court to argue the same high-profile affirmative action case
Bert Rein ’64 might have understandably felt a bit of déjà vu upon entering the Supreme Court in December 2015.
Three years after first arguing against the University of Texas’ affirmative action program, Rein found himself back at the Court delivering oral arguments in a challenge to the same program. He even faced off against the same opposing counsel, former Solicitor General Gregory Garre.
The outcome in the case—Fisher v. University of Texas—was no clearer at the end of the second round of oral arguments: The Court appeared just as divided.
This time, though, Rein was no longer the same rookie Supreme Court advocate who argued the Texas affirmative action case and also a separate challenge to a provision of the Voting Rights Act later that term.
“Bert comes to his first arguments at a rather late age,” said Edward Blum, who recruited Rein to the case. “So … just because you haven’t made a Supreme Court argument before you’re in your 70s, don’t rule out that possibility.”
Rein was hardly unfamiliar with the Supreme Court: He clerked for Justice John M. Harlan II in the October 1966 term. But overseeing international aviation and telecommunications negotiations as a deputy assistant secretary of state in the Nixon administration led him to specialize largely in those areas. In 1983, he left Kirkland & Ellis to co-found Wiley Rein, which started with 39 attorneys and now has more than 250.
Rein’s involvement in litigation around race-based protections began in the early 1990s when Blum, a former stockbroker with no legal training, sought help in a case challenging racial gerrymandering. Another Wiley Rein attorney argued that case, but Blum developed a lasting appreciation for Rein’s skills as a litigator.
He has the ability to noodle through every contingency in litigation.
“He has the ability to noodle through every contingency in litigation,” said Blum. “He can very quickly assess the costs and benefits of framing a case one way versus framing it a different way. I have found Bert to be someone I turn to when other lawyers just seem to be befuddled.”
Over 20 years, Blum has single-handedly orchestrated at least a dozen lawsuits aimed at race-based protections “with the financial support of a handful of conservative donors,” according to a 2012 Reuters story.
He turned to Rein’s firm again as he launched a series of other lawsuits, including the challenge to the University of Texas’ affirmative action program and a separate challenge to the Voting Rights Act’s pre-clearance requirement.
Rein said he believes “personally that the positions we litigated are constitutionally sound and in the best interest of all.”
“Accepting and patching inequality and surrendering the aspiration to achieve true equality is shortsighted and can embed the discrimination that we should strive to overcome,” Rein said.
Rein said having a case pending before the Supreme Court made it easier to organize moot courts, and it certainly attracted more media attention than some of the other appellate cases he’d argued, but he found the experience inside the courtroom similar to that of other oral arguments.
“I didn’t think there was any great magic to it,” Rein said. “It’s just a matter of really focusing, listening intently to the questioning.”
The justices handed down decisions in both cases in a span of two days in June 2013, which Washingtonian magazine dubbed “Bert Rein’s week.”
The Court ruled 5-4 in Rein’s favor in Shelby County v. Holder, holding unconstitutional the formula used to determine which jurisdictions must get pre-clearance before adopting any new voting changes.
The outcome was less decisive in the Texas affirmative action case. The justices voted 7-1 to send the case back to the lower appellate court for further consideration of the admissions policy.
After the 5th Circuit ruled in the university’s favor, the justices agreed to hear a second challenge. HLS Dean Martha Minow filed a brief with Yale Law School Dean Robert Post, warning that a decision against race-based admissions would have “devastating” consequences. “Requiring schools to ignore a factor that is often inextricable from an applicant’s formative life experiences would perversely penalize some applicants in the name of equal protection,” said the brief.
Rein said he anticipates an end to the case, although not any finality regarding affirmative action. “I’m not expecting a radical decision that will lay to rest all the controversy about what is the permissible role of race in admissions.”
While awaiting the decision, he stepped down from management of the firm that bears his name as of the start of the year. But he has no intention of retiring any time soon: “I haven’t left the practice in any sense.”