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Supreme Court History in 'More Perfect': The Secret Architect Fighting Civil Rights Laws

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By Casey C. Sullivan, Esq. on August 25, 2016 6:58 AM

'Test cases,' or legal challenges meant to set precedent and change the law, were pioneered by civil rights activists. Test cases brought us some of the Supreme Court's greatest civil rights victories, and some of its greatest failures. But in the past few years, test cases have also become a powerful force in undoing civil rights laws, with test cases directed at everything from the Voting Rights Act to college admissions. And many of those cases are directed by a single man.

In this week's recap of "More Perfect," our look into NPR's new Supreme Court podcast, we're looking at the man behind some of the Supreme Court's most high-profile recent civil rights decisions: Edward Bloom.

Test Cases Were Originally a Failure

Before we get to Bloom, though, some background. As episode four of "More Perfect" notes, one of the first civil rights test cases was Plessy v. Ferguson, the 1896 case that gave us "separate but equal." In fact, Plessy was a test case meant to do just the opposite, to strike down segregationist laws in their post-Civil War infancy. Whoops.

Plessy challenged a Louisiana law requiring segregated cars on railways. A group of New Orleans residents opposed to segregation formed the Comité des Citoyens to challenge the law. They were backed, in part, by railroad companies who opposed the law, more out of a desire to avoid the extra costs of extra cars than out of support for equality. The group convinced Homer Plessy to be their legal guinea pig.

But first, they needed the law to be enforced. Plessy, who was only 1/8 African American, boarded a white car and informed the conductor that he was not fully white. When he was told to move, he refused. Then, Plessy had a private detective he had hired arrest him on the spot. (You could do that back then.)

Plessy was virtually the definition of manufactured litigation. It was also a calculated attempt to undo the law through litigation. Except the Comité des Citoyens had miscalculated.

Legalizing Test Cases

When Plessy was litigated, Plessy had broken the law in more ways than one. "Manufacturing cases" and "fomenting litigation" were crimes at the time.

But despite their questionable legality, test cases have long been important to American law. They brought us the Scopes monkey trial and Brown v. Board of Ed. Test cases helped legalize gay marriage and reshape the Second Amendment, to build up voting rights protections and to knock them down.

Test cases are most closely associated with the civil rights movement and were perfected by groups like the NAACP.

Virginia tried to restrict the ability of such groups to bring test cases to challenge Jim Crow laws, by expanding the definition of barraty, champerty, and maintenance. The state tried its own sort of test case, prosecuting the NAACP for "the improper solicitation" of legal business under those laws. The result was NAACP v. Button, the 1963 Supreme Court decision that legalized test cases as a protected form of political expression.

Abigail Fisher, and the Man Behind Her

Decades later, conservative activists themselves began using test cases to challenge many Civil Rights Era laws and practices. Most recently, Abigail Fisher sought, unsuccessfully, to end the University of Texas's consideration of race in its admissions decisions.

During that case, Fisher v. University of Texas at Austin, Abigail Fisher had plenty of public scorn and derision directed her way. Just check out #BeckyWithTheBadGrades.

But Abigail wasn't the force behind Fisher, Edward Bloom was. Few nasty hashtags were directed his way.

Bloom is "the architect," as "More Perfect" dubs him, behind dozens of lawsuits challenging civil rights laws. But when you pull back the curtain, he's not some Bond villain stroking a cat and burning crosses. Bloom is "like a totally nice guy," who looks like "a dad," and says he "just loves tradition and custom," according contributing reporter Katherine Wells.

Bloom comes from a liberal, Jewish family. He was, he says, the first Republican his mother ever met. Bloom, indeed, was a leftist for much of his life, until he spent some time kibbutzing in Israel, then moved to Houston and became a NeoCon.

From Politician to Test Case Architect

Bloom's political changes didn't initially drive him to the courthouse. Instead, he ran for Congress, as a Republican. He lost horribly, but while campaigning he noticed that his congressional district was not a particularly straight-forward shape.

Neighbors in his district, Bloom says, were "separated, almost house by house, because of their race." The goal was to create a majority minority voting district.

Bloom eventually sued. But he didn't sue on his own behalf. In test case style, he found a sympathetic group of plaintiffs, all local voters, one African American, one Hispanic, one Asian, to take his case to court.

That suit resulted in 1996's Bush v. Vera, which held that states could create minority majority districts, but that the way Texas went about it did not withstand strict scrutiny. More emphasis on race in its historical and social context was needed.

It was a "hair-splitting" decision, but a win. Bloom was hooked. He's now brought more than two dozen lawsuits against race-based policies, six of which have made it to the Supreme Court. One of those was Shelby County v. Holder, which struck down central provisions of the Voting Rights Act.

Testing Texas's Admissions -- and Failing

When it came to challenging the University of Texas's admissions, Bloom took a similar test case approach.

Bloom launched a website to recruit students who had been rejected by UT. He created a recruiting video. To find the best plaintiff, he conducted interviews with the applicants who responded, narrowing a field of 175 possible plaintiffs down to just seven.

Then he went with Abi, who didn't even come from that group. Abi Fisher was simply the daughter of a friend, who was upset that she was rejected from UT.

Abigail Fisher and Edward Bloom lost their challenge this June. Like Plessy, their suit backfired. Affirmative action in university admissions is now safer than it was before. They even tipped Justice Kennedy's hand, forcing him to actually vote for programs that he'd only paid lip service to before.

When the decision came out, Bloom downed three glasses of wine, popped an Ambien, and went to sleep listening to Billy Joel's "Keeping the Faith."

And Bloom has kept the faith in his cause. Despite his recent failure, he's currently litigating test cases against admissions policies at Harvard and the University of North Carolina.

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