John was known for his smile and the twinkle in his eyes. But the smile always belied the sharpest of minds. He was smiling, but he was two steps ahead of you, and when he spoke you knew you were being led to a conclusion John wanted you to reach. Many a judge found themselves so led by John during his numerous, brilliant appellate arguments.
When I think of John’s signature style, I recall his oral argument in Gratz v. Bollinger (pdf), the Supreme Court case that challenged the use of affirmative action in admissions at the University of Michigan. John lost that case — the court decided that the methods used by the university for undergraduate admissions violated the Constitution — but the war was won. The court accepted the view that universities can assert their interest in diversity to support considering race, among other factors, in admissions. (That limited win may be wiped out next term when the court hears Fisher v. University of Texas).
But John responded to the first question posed by the court in his way — like a teacher, he laid out the truth in short, clear sentences, presenting a disturbing but accurate picture of how racial segregation affects students entering college:
Michigan is a very segregated state. Detroit is overwhelmingly black. Its suburbs and the rest of the state are overwhelmingly white. While Michigan is rare in this regard, it’s not that extreme from the rest of the country. The University’s entering students come from these settings, and have rarely had experiences across racial or ethnic lines. That’s true for our white students. It’s true for our minority students. They’ve not lived together. They’ve not played together. They’ve certainly not gone to school together. The result is that these students come to college not knowing about individuals of different races and ethnicities. And often not even being aware of the full extent of their lack of knowledge.
It should be remembered that John Payton is one of only a handful of lawyers — and he may be the only African-American civil rights lawyer — who managed to provoke Justice Clarence Thomas (pdf) to forswear his vow of silence on the bench.
Thomas roused himself to question Payton, among all of the lawyers arguing in the Gratz case. It was a respectful exchange about how the support of affirmative action policies at majority white colleges can be squared with support for historically black colleges. In part because of the surprise at hearing Thomas speak, but just as importantly for Payton’s calm, clear and response, it was perhaps the most riveting part of the oral argument that day.
An extraordinary leader and lawyer — a brilliant mind, a member of the family — has left us.
Sherrilyn A. Ifill is a professor of law at the University of Maryland and a regular contributor to The Root. She was an assistant counsel at the NAACP Legal Defense Fund from 1988-1993.