26 Pages Posted: 8 Dec 2003
In the Michigan affirmative action cases, the Supreme Court not only reaffirmed the result of the 1978 decision in Board of Regents of the University of California v. Allan Bakke, but specifically endorsed the opinion and reasoning of Justice Lewis Powell. At the time, Powell spoke for himself alone. None of his colleagues embraced his position, which was widely seen, by both liberals and conservatives, as internally contradictory and incoherent. Yet twenty-five years later, Powell carried the day. This essay explores the evolution of Powell's position from eccentric outlier to received wisdom and offers comments on the lessons that can be drawn from that experience. It is a preliminary draft of an essay that will appear, as edited, in the Supreme Court Review.
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