In his short dissent Justice Stevens seems more interested in walking down memory lane than in dealing with the facts of these cases. Moreover, the reliability of Stevens’ historical musing is subject to doubt.
Stevens concludes with this line: “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” Stevens offers no survey of the jurisprudence of any member of that Court in support of his “conviction.” The members were Warren Burger, William Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Powell, William Rehnquist, and Stevens.
Chief Justice Roberts clerked for Rehnquist. Perhaps Stevens was directing his comment about the 1975 Court at Roberts. In any case, the comment is a strange one; law professors usually play these “what if” games, not the Justices themselves.
As applied to Rehnquist, Stevens’ comment is almost certainly incorrect. From Bakke (1978) through Grutter (2003), Rehnquist consistently voted against race-based classifications in Equal Protection cases. Never did he vote to uphold such a classification that Justice Kennedy rejected. Kennedy, of course, rejected the two classification schemes Stevens is so sure would have unanimously been upheld by the 1975 Court.
It’s a long-shot, to put it gently, that Rehnquist would have upheld the crude racial classifications used by the two school districts here. Under the Seattle plan, for example, a school with 50 percent Asian-American students and 50 percent white students would qualify as balanced and thus in no need of a boost from race-based assignments. On the other hand, a school with 30 percent Asian Americans, 25 percent African Americans, 25 percent Latino, and 20 percent white students would be grist for the racial balancing mill. It is most unlikely that Rehnquist would have found that a plan this strange meets the level of scrutiny he always insisted upon in such cases.
UPDATE: Gretchen Sund at the Scotus blog points to another member of the 1975 Court who likely would have voted to strike down the racial classifications used by the Seattle and Jefferson County, Kentucky school sytsems. In Minnick v. California Department of Corrections, a case 1981 case I worked on, Potter Stewart wrote:
So far as the Constititution goes, a private person may engage in any racial discrimination he wants, . . . but . . . a sovereign State may never do so. And it is wholly irrelevant whether the State gives a `plus’ or `minus’ value to a person’s race, whether the discrimination occurs in a decision to hire or fire or promote, or whether the discrimination is called `affirmative action’ or by some less euphemistic term.
This case involved race-based preferences in employment. However, as Sund notes, Stewart’s statement is “pretty sweeping.” The Court ultimately declined to decide Minnick on the grounds that the lower court decision was not appealable. Stewart dissented from that ruling. Rehnquist agreed with it, but also said he would have joined Stewart’s opinion had the decision below been appealable.
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