Originally uploaded at SSRN.


This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal a more complex story. As a law clerk Stevens had urged that Justices declare segregation itself unconstitutional in 1948, six years before the Court took that step. The state’s refusal to admit a qualified applicant to law school solely on account of her race represented an individualized wrong, one that bore resonance with the Depression-era experiences of Stevens's own family. Stevens would come to describe unequal treatment as a breach of the sovereign's duty to govern impartially. But the Justice did not view race-based means to remedy prior discrimination in the same light. As the article demonstrates, it was only after he shifted attention away from the injustices of the past and toward expectations of a just future that Stevens adjudged affirmative action as a permissible means toward an equally impartial government.