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October 01, 2011

A Tribute to John Payton

by James E. Coleman Jr.

John Payton, president and counsel-director of the NAACP Legal Defense Fund (LDF), and a former member of the Council of the Section of Individual Rights and Responsibilities (2002–08), died on March 22, 2012, after a brief illness. He was sixty-five. John will be remembered as one of the most brilliant and successful lawyers of his generation.

Since his death, many, including President Barack Obama, have described John as a great civil rights lawyer, an accurate but incomplete description of his career. He was a prominent Washington, D.C., lawyer who made extraordinary contributions locally, nationally, and internationally and to the legal profession.

John, a California native, spent most of his legal career at Wilmer, Cutler & Pickering and its successor, WilmerHale. He joined the firm as an associate in 1979, after graduating from Harvard Law School and clerking for the Northern District of California. He remained at the firm until 2008, except for a three-year stint as corporation counsel for the District of Columbia (1991–94). At Wilmer, where his mentors included firm founders Lloyd Cutler and John Pickering, John had a successful career as a commercial litigator; from 1998–2000, he headed the firm’s Litigation Group. He was president of the D.C. Bar in 2001. From the very first day of his career, John’s passion was, in the words of the Section’s mission, “protecting and advancing human rights, civil liberties, and social justice.”

As a brand-new associate, John worked with Lloyd Cutler and Jim Robertson on NAACP v. Claiborne Hardware, which upheld the First Amendment right of civil rights organizations to boycott white merchants over racial discrimination. He was one of the lead attorneys in Mozert v. Hawkins County Board of Education (1983–87), an important case upholding a school board’s right to require students to read particular books over their parents’ religious objections. In 1998, he argued City of Richmond v. Croson in the Supreme Court, defending the city’s voluntary affirmative action plan for awarding government contracts.

A critical lesson from Croson was that an affirmative action plan needed to be supported by a compelling factual record to have any chance in the Supreme Court. So John went to work to develop such a record in his successful defense of the University of Michigan in the Gratz and Grutter cases, which upheld the right of institutions of higher education to consider race in order to achieve the educational benefits of a racially diverse student body. Beginning in 1997, John undertook a Herculean effort in the district court to develop an unassailable factual record to support Michigan’s affirmative action plans; then he brilliantly used the record to defend the plans in the Sixth Circuit and ultimately in the U.S. Supreme Court.

After the landmark victories in the Michigan cases, John turned his attention to improving K–12 education, the logical next step after Justice Sandra Day O’Connor’s majority opinion in Grutter, which acknowledged the failed promise of Brown v. Board of Education. In a 1994 article, John described that promise as “a country pulled together rather than apart by race. A country strengthened by its racial diversity. A democracy made healthy.”

In the brief time after John took over its helm, LDF achieved important Supreme Court victories in Lewis v. City of Chicago (protecting rights of minority firefighters) and Northwest Austin Municipal Utility District v. Holder (defending the Voting Rights Act of 1965).

John’s legacy is recorded not only in the legal battles he shaped, fought, and won, but also in his many acts of kindness and compassion. He was an independent and intellectually honest lawyer. His quest was pure; he had no enemies list. Along his short journey, he made friends of some who could have been enemies, and he made a lasting difference.

James E. Coleman Jr.

James E. Coleman Jr. is the John S. Bradway Professor of Law at Duke University Law School and is a former chair of the Section of Individual Rights and Responsibilities.