WASHINGTON — Since 1996, eight of the nine seats on the Supreme Court have changed hands. But a constant has remained throughout the 26-year span: Seth P. Waxman ’73 at the lectern.
Waxman, a former U.S. solicitor general, has argued before the highest court at least once in 25 of the last 26 years, totaling 84 Supreme Court appearances in the last three decades. In his latest turn before the justices this week, Waxman led the charge to preserve affirmative action in higher education, arguing in defense of Harvard’s race-conscious admissions practices.
Though the court appears poised to strike down affirmative action, legal experts praised Waxman’s performance, commending his ease and confidence before the bench.
Waxman has served on Harvard’s legal team since anti-affirmative action group Students for Fair Admissions first sued the school in 2014, alleging that Harvard’s race-conscious admissions policies discriminate against Asian American students. The group filed a similar lawsuit against the University of North Carolina, which was also heard by the Supreme Court on Monday.
In contrast to Waxman’s extensive record before the court, both lawyers representing SFFA and North Carolina Solicitor General Ryan Y. Park, who represented UNC, had only previously argued before the Court once in their careers.
Another new presence in the courtroom was Justice Ketanji Brown Jackson ’92 — who began her first term on the court last month. Jackson recused herself from the Harvard case in March, citing her previous position on the University’s Board of Overseers.
For the other eight justices, though, Waxman was a familiar face.
Interactions between the justices and Waxman seemed a “little chummy,” New York University School of Law professor and Supreme Court expert Melissa E. Murray said. “That was not the case for some of the other lawyers.”
In one exchange during the hearing, Waxman continued arguing even as Justice Samuel A. Alito Jr. tried to ask a question, prompting Chief Justice John G. Roberts Jr. ’76 to interject.
“Justice Alito would like to ask a question,” Roberts said.
“I’m sorry. I’m not trying to filibuster you,” Waxman replied, laughing.
Alito invited Waxman to finish his argument, a marked contrast from the justices’ interactions with the other lawyers present Monday.
“Even from an outsider perspective, you could pick up on a difference in just the mode of engagement,” said Jonathan Feingold, a professor at the Boston University School of Law.
The former Solicitor General was quick to banter with the justices. When Justice Neil M. Gorsuch posed a hypothetical admissions scenario, Waxman interjected.
“I’m pretty sure, because you’re asking me, I’m not going to like it,” he said.
“You’re not going to like it,” Gorsuch confirmed, prompting a laugh from Justice Amy Coney Barrett.
Murray said that both Waxman and U.S. Solicitor General Elizabeth B. Prelogar, who argued in favor of both Harvard and UNC, seemed to be more at ease before the justices than the other lawyers.
“It was just more fluent, more easy, like more of a conversation as opposed to a battle,” Murray said. “With Prelogar and Waxman, there was a kind of fluency and just facility with the justices — like a comfort that was there.”
University of Michigan Law School professor Leah M. Litman ’06 said that while Waxman’s familiarity with the court helped set a friendly tone throughout the arguments, his evidence-based responses to the justices’ questions granted him more “wiggle room.”
“He says really helpful things,” Litman said. “That is, he is answering questions and pointing out relevant details about the factual record or relevant points about constitutional interpretation that are responsive to the questions and move the Court forward.”
Litman also noticed that Waxman would first outline each response before elaborating, a strategy that let the justices know ahead of time when he would be finished with his reply.
“When he says, ‘I have a two-part or three-part answer’ or ‘I'll answer your question, but then I need to get to something else,’ they allow him to do that,” she said.
But Litman predicted that Waxman’s tactics may not be enough to preserve the future of affirmative action.
“Is that going to make a difference in this case?” Litman asked of Waxman’s performance. “Probably not, just given the extent to which the justices are so strongly committed to overruling Grutter v. Bollinger and ending race-conscious remedies.”
—Staff writer Rahem D. Hamid can be reached at email@example.com.
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