By John S. Rosenberg
When Justice John Paul Stevens retired from the Supreme Court in 2010 ABC News noted that over the course of his 34 years on the Court he "became a hero to liberals[,] voting to ... uphold affirmative action" and other liberal causes. Now he has written an autobiography, Five Chiefs: A Supreme Court Memoir, ruminating on that long, liberal career. Regarding affirmative action, however, those ruminations are misleadingly selective.
News World Report interviewed
Justice Stevens a few days ago about his memoir, claiming that he "gives candid
views of the five chief justices he has worked with, as well as his take on
some of the most significant cases in U.S. history." I don't know about the
other "most significant cases," but Justice Stevens' very brief references to
affirmative action in Five Chiefs and
his comments about it to U.S. News
are considerably less than candid.
His comments in the book are limited to a few sentences about Grutter, where he endorsed Justice O'Connor's rejection of "language in the Court's earlier opinions that suggested that remedying past discrimination was the only permissible justification for race-based governmental action." There was, of course, considerably more than "language" to that effect in those earlier opinions, but leave that aside. The point Stevens is at pains to make here is that the Court had finally
endorsed the views that I had unsuccessfully espoused in an earlier case that involved a black high school teacher in Jackson, Michigan. The Court's holding -- that the law school had a compelling interest in attaining a diverse student body -- emphasizes the future rather than the past.
Stevens has been singing this same tune for quite a while. Shortly after swearing in the current Chief Justice, Justice Stevens emphasized the importance of "a flexible approach to the law" to a Fordham law school audience, adding that "learning on the bench has been one of the most important and rewarding aspects of my own experience over the last 35 years." His example: "With respect to the constitutionality of affirmative action," he said, "we have learned that justification based on past sins may be less persuasive than those predicated on anticipated future benefits." Left unstated was who "we" are.
Looking to the Future, Not the Law
Stevens made that same point, and only that point, in his U.S. News interview, where his affirmative action comments consisted entirely of the following exchange:
Have you changed your view on affirmative action?
I had to make decisions in different contexts. And in some of the early affirmative action cases, Congress had passed a statute that was very poorly considered. In early cases, the courts seemed to think of affirmative action merely as a remedy for past wrongdoing.
What should they have done instead?
Looked at the benefit that affirmative action could produce for the future.
This "different contexts" explanation of his earlier views -- which he failed to mention were the opposite of his later views -- is disingenuous at best. That "very poorly considered statute" was, of course, the Civil Rights Act of 1964, perhaps one of the best considered pieces of legislation in our history, and in any event it is unseemly for a Supreme Court justice to blame opinions he now regrets on shoddy work by Congress. "Different contexts," in short, doesn't begin to describe or explain the radical transformation of Justice Stevens' approach to governmental thumbs on the racial scale, especially when the reversal of his earlier views cannot be explained by any changes in the 1964 act, whose relevant text didn't change.
Justice Stevens was correct to note that in Grutter the Court accepted the argument of his 1986 dissent in Wygant v. Jackson Board of Education that "diversity" can justify governmental distribution of benefits and burdens based on race. What he did not mention is that Wygant was decided eleven years after he had been appointed to the Court and that it was the first time he ever approved a racial classification. Indeed, over the course of his first decade on the Court Stevens had, in the words of a scholarly survey of his decisions on race, "seemed destined to be one of the Supreme Court's most vigorous opponents of affirmative action."
A year after his appointment Justice Stevens joined the opinion of the Court in McDonald v. Santa Fe Transportation Co., which held that the Civil Rights Acts of 1866 and 1964 protected whites as well as blacks from discrimination. Two years later, in a long concurring opinion in Bakke, he offered a penetrating, compelling criticism of the "diversity" road on which the Court had, he then thought, disastrously embarked. That criticism was based on a thoroughly researched and entirely persuasive analysis of the legislative history, intent, and clear text of that same Civil Rights Act of 1964 that he now derides as "poorly constructed."
Here is a powerfully argued excerpt from Stevens' concurrence (emphasis added but citations omitted):
Section 601 of the Civil Rights Act of 1964 ... provides:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below. A different result cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted.
Petitioner contends, however, that exclusion of applicants on the basis of race does not violate Title VI if the exclusion carries with it no racial stigma. No such qualification or limitation of 601's categorical prohibition of "exclusion" is justified by the statute or its history. The language of the entire section is perfectly clear; the words that follow "excluded from" do not modify or qualify the explicit outlawing of any exclusion on the stated grounds.
The only suggestion that the Civil Rights Act would allow discrimination against whites, Stevens emphasized, "came from opponents of the legislation." He quoted the following, for example, from a Congressional opponent:
Presumably, the college would have to have a "racially balanced" staff from the dean's office to the cafeteria....
The effect of this title, if enacted into law, will interject race as a factor in every decision involving the selection of an individual.... The concept of "racial imbalance" would hover like a black cloud over every transaction....
Justice Stevens rejected this view root and branch, quoting extensively from the record of debates to show that Congress quite clearly imposed a colorblind standard that barred discrimination for or against any race and that precluded the kind of imposed "racial balancing" feared by the Act's critics. "Our Constitution is colorblind," he quoted Sen. Pastore (D, RI) exclaiming (along with many others), "and so must be our government."
The Ban on Racial Favoritism was 'Crystal Clear'
In short, Stevens concluded, the Civil Rights Act's prohibition of racial favoritism by the government was "crystal clear." Nothing, he insisted,
justifies the conclusion that the broad language of 601 should not be given its natural meaning. We are dealing with a distinct statutory prohibition, enacted at a particular time with particular concerns in mind; neither its language nor any prior interpretation suggests that its place in the Civil Rights Act, won after long debate, is simply that of a constitutional appendage. In unmistakable terms, the Act prohibits the exclusion of individuals from federally funded programs because of their race. As succinctly phrased during the Senate debate, under Title VI, it is not "permissible to say 'yes' to one person, but to say 'no' to another person, only because of the color of his skin."
Justice Stevens consistently opposed racial classification and
preference for over a decade. In a sharply worded dissent
in Fullilove v. Klutznick (1980), for
example, he strenuously objected to a racial set-aside program, noting that
allowing such a race-based program could create "a permanent source of
justification for grants of special privileges." Racial classifications, he
argued, "are simply too pernicious to permit any but the most exact connection
between justification and classification. Quite obviously, the history of
discrimination against black citizens in America cannot justify a grant of
privileges to Eskimos or Indians." Indeed, he concluded, "the very attempt to
define with precision a beneficiary's qualifying racial characteristics is
repugnant to our constitutional ideals."
In short, it is clear beyond cavil that Justice Stevens' decade-long belief that race-based affirmation action violates the "plain meaning" of Congress's "perfectly clear," "crystal clear" "distinct statutory prohibition" was not dictated by deference to a "poorly considered" Civil Rights Act. Those "crystal clear," "perfectly clear" words, after all, didn't change. Justice Stevens simply changed his mind, contributing significantly to an expansion of racial preference that ironically resulted in the fears of the opponents of the Civil Rights Act that it would lead to "racial balancing" proving more prescient than the denials of its supporters.
Everyone, of course, is entitled to change his mind. Learning, as Justice Stevens stated, requires that flexibility. But Supreme Court justices are not just anyone.
Because their opinions become law, when they change their minds
they are obligated to provide reasons. And when their "learning" leads not to a
deeper understanding of such substantively opaque terms as "due process" or
even "equal protection" but, as with Justice Stevens, leads him to abandoning a
long-held deference to an unchanged "crystal clear" legislative prohibition, he
owes us an explanation that is totally absent from both his memoir and his U.S. News interview.
John S. Rosenberg is a lapsed historian blogging at Discriminations.