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group of children within its border!’ He ordered the state to stop enforcing the law, and all local school districts to admit students without regard to their immigration status. “Texas v. Children,” was the headline the next day in the opinion page of the Dallas Times-Herald, while the rival Morning News declared, “Illegal Aliens Win Case.” For the next few weeks, the staff in Seals’ office learned to ignore the phones during lunch. “It is people like you who will cause the ultimate breakdown of the system of law under which we live and the subsequent return to the law of the jungle,” charged one angry letter writer. Another proclaimed that Seals had “placed a socialistic albatross around the necks of the citizens of the United States!’ Replying to a congratulatory letter from Yarborough, Seals wrote: “These children still have a long way to go.” With an eye toward the upcoming presidential election, he added, “I hate to think what will happen to my decision if Governor Reagan wins the election and appoints four new justices to the Supreme Court. I do not think those children would have much of a chance.” In his first year, President Reagan appointed just one new justiceSandra Day O’Connor, the Arizona Republican who became the first woman on the court. On the morning of December 1, 1981, the gallery was packed as O’Connor participated in oral argument in one of her first major cases. She sat at the far end of the judicial panel, surrounded by stacks of books. From his vantage point at the counsel table, attorney Isaias Torres was almost close enough to touch her. The court had combined the Plyler and In re: Alien Children Litigation cases. Schey and Roos divided their argument time, while Richard Arnett, a Texas assistant attorney general, and John Hardy, the Tyler school attorney, divided theirs. Arnett began with a geography lesson: Texas sat “right on top of the hub” of Mexico’s population and was the most vulnerable to an influx in population from Mexico. The Texas Education Code had been amended to protect the Mexican American population along the border, he said. As Torres listened to O’Connor pepper Arnett with questions, he began to think that she just might vote on the side of the children. Then-Justice William Rehnquist occasionally looked offkilter, slurring his words as he asked hypotheticals about the law of domicile and Louisianans moving to Texas for an education. Justice Thurgood Marshall, who led the 20-year battle that culminated in Brown v. Board of Education before becoming the first black justice, seemed ready to pounce. He asked Hardy, could Texas deny fire protection to illegal aliens? “Deny them fire protection?” Hardy responded. “Yes, sir. F-I-R-E. Could Texas pass a law and say they cannot be protected?” Hardy didn’t think so. “Why not?” Marshall shot back. “Somebody’s house is more important than his child?” Much of oral argument revolved around the minutiae of immigrationWhat was a green card and how did you get one? What was a work permit?as well as questions about “It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates.” the law of domicile in Texas. What about a Virginian who moved to Texas, intending to stay less than a year? What about a professor from Mexico who moved to Texas to teach? At one point, an exasperated Marshall asked Roos when somebody was going to start arguing the 14th Amendment and equal protection. If oral argument was lively, the court’s private deliberations proved even livelier. In a series of articles published last January in Slate, author Jim Newton provided insight into how lively. For decades, Justice William Brennan compiled a series of case memos, chatty and informal summaries of the mood and the meat of weekly deliberations. The memos are archived in the Library of Congress; many had never been made available to the public. A selection of Brennan’s case memo for Plyler v. Doe was posted online: TM took sharp exception to WHR’s reference to illegal aliens as “wetbacks.” When WHR sought to defend his use of the terms as one still having currency in his part of the country, TM reminded WHR that under that theory he used to be referred to as “nigger” But warmer feelings prevailed and TM and WHR returned to the matter at hand. The Chief began the discussion by arguing that illegal aliens should not be entitled to receive welfare \(as if that aliens were “persons” within the meaning of the Equal Protection Clause. Still, he continued, whatever level of scrutiny was appropriate it did not entitle illegal aliens to receive welfare or an education. The swing vote would not be O’Connor, as Torres and others had predicted. Brennan and Chief Justice Warren Burger would be courting Lewis Powell for the fifth vote. Brennan drafted and redrafted the opinion to emphasize the innocence of children and the importance of education. Powell, Harry Blackmun, Marshall, and John Paul Stevens joined Brennan in the majority opinion upholding the rulings by Justice and Seals. “It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and JULY 13, 2007 THE TEXAS OBSERVER 19