What Justice John Paul Stevens’s Papers Reveal About Affirmative Action
20 years ago, in a draft opinion, Justice O’Connor wrote that white applicants could not be favored over Asian Americans. Harvard’s Jeannie Suk Gersen asks why Justices O’Connor deleted those lines and why Justice Clarence Thomas adopted them in his own opinion.
“The idea that they [Asian Americans"] have been discriminated against in admissions is inconvenient and uncomfortable for supporters of affirmative action, myself included…for decades, liberal support of affirmative action for underrepresented minorities seemed to come with tolerating, denying, or ignoring an unspoken disfavoring of Asian Americans in favor of white students…”
“Why might a statement [by Justice O’Connor] that ‘white and Asian applicants must be treated similarly’ have been objectionable to liberals?.. liberal Justices (or law clerks) in Grutter may have wished to avoid explicitly endorsing an Asian American entitlement to ‘be treated similarly’ to white applicants. That might be a slippery slope to an entitlement to be treated similarly to Black or Latino applicants—which would destroy affirmative action.”
