Twenty years ago, Justice Sandra Day O’Connor wrote, in a draft opinion, that white applicants could not be favored over Asian Americans. Why did she delete those lines—and why did Justice Clarence Thomas adopt them in his own opinion?
in favor of white applicants. But, in her article, Faust didn’t once mention the word “Asian”; reading her account of the case, one wouldn’t know that it involved Asian Americans. Her well-placed criticism of color blindness apparently had its own blind spot.
O’Connor circulated her first draft of the majority opinion to the Justices on May 13, 2003. In it, she articulated affirmative-action standards that have been legally permissible for decades. Under Grutter, a school could consider race “flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant,” in order to seek “the educational benefits that flow from a diverse student body.
On June 5, 2003, O’Connor circulated her next draft to the Court. In that draft, the material about preferences among “white and Asian applicants” and among “African-American and Native American applicants” was removed. The final opinion for the majority, published on June 23rd, contained no prohibition on preferences among racial groups.
The opinion-drafts intrigue doesn’t end there. One week after the aforementioned material disappeared from O’Connor’s draft of the Grutter majority opinion, it reappeared, this time in the draft opinion circulated by Justice
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