Why might a statement that “white and Asian applicants must be treated similarly” have been objectionable to liberals? It was highly foreseeable, even in 2003, that future waves of litigation over admissions would involve Asian Americans, who were held up as “model minorities” in educational achievement. And it was also foreseeable that their complaints would concern not just preferences for underrepresented minorities such as Black, Hispanic, and Native American applicants but also admissions practices that allegedly favor white applicants over Asian American ones. As a result, liberal Justices (or law clerks) in Grutter may have wished to avoid explicitly endorsing an Asian American entitlement to “be treated similarly” to white applicants. That might be a slippery slope to an entitlement to be treated similarly to Black or Latino applicants—which would destroy affirmative action.
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 Clarence Thomas, on June 12, 2003. He styled a section of his opinion as a concurrence, in contrast to the bulk of his opinion, which was very clearly a sharp dissent. In the concurring section, Thomas joined the majority opinion, “insofar as it confirms” that “the Law School may not discriminate in admissions between similarly situated blacks and Hispanics, or between whites and Asians.” Though O’Connor had already removed any such statement from her opinion, Thomas co-opted her ghost sentences into his own opinion, to “concur” and thereby make it seem as if that’s what the majority held.
Thomas’s concurring section also addresses the oddest and best-known line of the Grutter majority opinion, that “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Thomas called this a holding of Grutter, meaning that, as he put it, “in 25 years the practices of the Law School will be illegal.” Fashioning his statement as a concurrence rather than simply dissenting from the majority in full was a naked, even manipulative, attempt to boost the argument that Grutter mandated its own expiration date. When I spoke to Cristina Rodríguez, who clerked for O’Connor, she described this statement as a “distortion” of O’Connor’s opinion and recalled “a lot of confusion and frustration around the twenty-five years” among the clerks for various Justices. She said, “I would not read it as a holding.”