But on many other issues, such as race discrimination, Stevens swung so far to the left that his earlier opinions would be unrecognizable as having been written by the same man.
In 1978, Stevens was not only in the majority in University of California Regents v. Bakke, but he wrote the opinion holding that the school's race-based admissions program violated Title VII and ordering the university to admit Bakke.
In another case of government race-based classifications, Fullilove v. Klutznick (1980), Stevens ridiculed the idea of race-based "remedies" being applied to every ethnic group under the sun.
Adopting Justice William Rehnquist's view that the specific history of blacks in America makes their claims unique, Stevens wrote: "Quite obviously, the history of discrimination against black citizens in America cannot justify a grant of privileges to Eskimos or Indians." (Remember when you could use terms like "Eskimo" and "Indian" without being accused of a hate crime?)
Unlike blacks, who were "dragged to this country in chains to be sold in slavery," Stevens said "the 'Spanish-speaking' subclass came voluntarily, frequently without invitation, and the Indians, the Eskimos and the Aleuts had an opportunity to exploit America's resources before the ancestors of most American citizens arrived."
Now fast-forward to 2003, when the court considered the race-based admissions policy at the University of Michigan. The school automatically awarded 20 points -- one-fifth of the total points needed for admission -– to every minority, including not only blacks, but also Hispanics, Indians, Eskimos and Aleuts.
This time, affirmative action for Aleuts was just peachy with Stevens, who came up with a ludicrous procedural objection to the lawsuit, basically concluding that no one ever has standing to sue for race discrimination in college admissions. I guess he figured it was time somebody did something about the University of Michigan's long, shameful history of discriminating against Aleuts.
That's quite a change from the Justice Stevens of Fullilove, who compared government affirmative action programs to Nazi policies, saying if the government "is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reich's Citizenship Law of Nov. 14, 1935," translated in Volume 4 of "Nazi Conspiracy and Aggression."
Whatever you think of Stevens' newfound admiration for government racial preferences, it's preposterous to say, as Stevens did, "I really don't think I've changed all that much."
Even if we assume that each of the six racial subclasses has suffered its own special injury at some time in our history, [p538] surely it does not necessarily follow that each of those subclasses suffered harm of identical magnitude. Although "the Negro was dragged to this country in chains to be sold in slavery," Bakke, supra, at 387 (opinion of MARSHALL, J.), the "Spanish-speaking" subclass came voluntarily, frequently without invitation, and the Indians, the Eskimos and the Aleuts had an opportunity to exploit America's resources before the ancestors of most American citizens arrived. There is no reason to assume, and nothing in the legislative history suggests, much less demonstrates, that each of the subclasses is equally entitled to reparations from the United States Government. [n8]At best, the statutory preference is a somewhat perverse form of reparation for the members of the injured classes. For those who are the most disadvantaged within each class are the least likely to receive any benefit from the special privilege even though they are the persons most likely still to be suffering the consequences of the past wrong. [n9] A random [p539] distribution to a favored few is a poor form of compensation for an injury shared by many.
My principal objection to the reparation justification for this legislation, however, cuts more deeply than my concern about its inequitable character. We can never either erase or ignore the history that MR. JUSTICE MARSHAL has recounted. But if that history can justify such a random distribution of benefits on racial lines as that embodied in this statutory scheme, it will serve not merely as a basis for remedial legislation, but rather as a permanent source of justification for grants of special privileges. For if there is no duty to attempt either to measure the recovery by the wrong or to distribute that recovery within the injured class in an evenhanded way, our history will adequately support a legislative preference for almost any ethnic, religious, or racial group with the political strength to negotiate "a piece of the action" for its members.
Although I do not dispute the validity of the assumption that each of the subclasses identified in the Act has suffered a severe wrong at some time in the past, I cannot accept this slapdash statute as a legitimate method of providing classwide relief.
And, then, ask was it just to the rest of Americans for immigrants from India to have been reclassified from white to Oriental in 1982 in response to lobbying by immigrant Indian businessmen for special breaks on government contracting.
That would be fun.