The retiring Justice John Stevens, although appointed by Republican President Gerald Ford, favors the practice of admitting and rejecting students based on race in government-supported institutions of higher learning. But not always.
In 1978, he voted with the majority in part in Regents of the University of California v. Bakke, which declared the school’s racial preferences scheme unconstitutional. The economically and/or educationally “disadvantaged” and/or members of preferred racial minority groups had the option of being admitted under the school’s “special program.” These students were assessed against one another rather than the general applicant pool. In other words, they were assessed under a different standard.
Although “many” whites applied as disadvantaged, none were admitted under the special program.
A rejected white student named Allan Bakke filed suit, and the lower court ruled against the school, contending the special program operated as a racial quota system that violated the state and federal constitutions and the Civil Rights Act. The court also prohibited the school from using race as an admissions factor. The California Supreme Court affirmed the judgment. The U.S. Supreme Court affirmed the judgment in part but reversed the lower court’s ruling that race could not be used as an admissions factor.
Justice Stevens agreed that the school violated Bakke’s rights under the Civil Rights Act. Eight years later, however, Stevens would vote to uphold a racial quota system that violated the Act. Writing at the Weekly Standard, Terry Eastland quotes Stevens on the United Steelworkers of America v. Weber case:
“The only problem for me is whether to adhere to an authoritative construction of the Act that is at odds with my understanding of the actual intent of the authors of the legislation. I conclude without hesitation that I must answer that question in the affirmative,” Stevens wrote. If you’re looking for a definition of judicial activism, there it is—the subordination of legislation intent to what the judges say.
Justice Stevens caved to quotas and admitted that his view represented judicial activism, rendering a judicial decision based on personal or political ideology rather than on the Constitution.
In Gratz v. Bollinger (2003), in which the court ruled the University of Michigan’s race-based points admissions system unconstitutional, Justice Stevens filed the dissenting opinion. He contended the plaintiffs didn’t have standing to bring the suit. In Grutter v. Bollinger (2003), in which the court upheld the law school’s use of racial preferences, Justice Stevens voted with the majority.
In Ricci v. DeStefano (2009), in which the court ruled in favor of white and Hispanic New Haven firefighters whose test results were tossed because they were white and Hispanic, Justice Stevens joined Justice Ruth Bader Ginsburg’s dissent (surprise). Ginsburg claimed, among other things, that disparate impact justified the city tossing out exam results because no blacks scored high enough to qualify for promotion.
Addendum: From the National Journal’s article on Justice Stevens:
Seen in his early years as an idiosyncratic loner given to writing separate opinions joined by no other justice, Stevens was never a solid conservative. But he joined conservatives on ideologically charged issues including racial affirmative action, the death penalty, rights of criminal defendants, freedom of speech and government funding of abortion. Since about the mid-1980s, however, he has taken positions markedly to the left of where he started on these and other big issues.
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Race. Stevens sided with conservatives in the court’s first big cases involving racial affirmative action preferences in admissions and federal contracting. In the 1978 Bakke decision, Stevens wrote a dissent joined by his three most conservative colleagues arguing that the 1964 Civil Rights Act barred state universities from giving race-based preferences to minorities. And his 1980 dissent in Fullilove v. Klutznick argued for striking down a federal law requiring racial quotas in federal contracting.
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