On April 9, 2010, Associate Justice John Paul Stevens announced his retirement from the United States Supreme Court. An appointee of President Gerald R. Ford, Justice Stevens is retiring with a distinguished record of jurisprudence in support of equal opportunity through affirmative action.
While he is known for being a “liberal” justice, it may be argued that Stevens, a moderate Republican from the Midwest, remained faithful to his conservative ideals. It was the Court that veered to the right. In the Regents of the University of California v. Bakke case (1978), Justice Stevens opposed setting aside 16 out of 100 seats for minority students applying to the University of California at Davis Medical School. He chided the majority in the Adarand Constructors v. Pena minority contracting case, however. In Adarand the Court applied the same level of “strict scrutiny” to programs intended to remedy past discrimination as those intended to impose invidious racial classifications.
To Justice Stevens, “the consistency that the Court espouses would disregard the difference between a ‘No Trespassing’ sign and a welcome mat.” Moreover, Stevens believed that “some race-based policy decisions may serve a legitimate public purpose.” The justice also recognized the unique authority of the U.S. Congress to remedy discrimination against minorities.
Later, in the Grutter v. Bollinger case brought against the University of Michigan, Justice Stevens joined the majority, which upheld Justice Lewis Powell’s view in Bakke that “student body diversity is a compelling state interest in the context of university admissions.” In Parents Involved in Community Schools v. Seattle School District, a 2007 case challenging voluntary school desegregation policies in Seattle, Washington, and Louisville, Kentucky, Stevens condemned the majority’s failure to follow the precedent set forth by Brown v. Board of Education when it held that using race as a consideration in assigning students violated the U.S. constitution. Justice Stevens wrote: “It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”
Justice Stevens’ dissents were based on passion, a strong sense of justice, respect for court precedent and common sense. Serving on the bench with such giants as Thurgood Marshall and William Brennan, he may be the last Supreme Court justice who, in the mid-twentieth century, witnessed the raw, unvarnished history of discrimination that precipitated the passage of equal opportunity laws. As such a witness, he understood the compelling need to preserve them.
More important, Justice Stevens refused to turn the Fourteenth Amendment on its head with arguments that simply taking race into account constituted another form of discrimination. As Stevens wrote so eloquently, “The primary purpose of the Equal Protection Clause was to end discrimination against the former slaves. … When a court becomes preoccupied with abstract standards, it risks sacrificing common sense at the altar of formal consistency.”
Justice John Paul Stevens will be missed.
Shirley J. Wilcher, an attorney, is the executive director of the American Association for Affirmative Action in Washington, D.C.