The concept of affirmative action was created by Executive Orders 11246 and 11375, issued by republican President Richard Nixon and Texas Democrat President Lyndon Baines Johnson. Those orders created affirmative action obligations on the part of federal contractors to hire more women and minorities. For a half century, the courts have debated whether the contracting rule was a permissible goal or impermissible race and gender discrimination. Moderate republican justices including Sandra Day O’Connor have provided the swing votes keeping the concept of affirmative action alive.
In the companion cases of Students for Fair Admissions v. Harvard University and the University of North Carolina, in the context of public and private universities, the U.S. Supreme Court struck down the 60-year-old institution of racial preference affirmative action. After determining that affirmative action was at best a temporary correction whose time had ended, Justice John Roberts fiercely rejected the concept of stereotyping writing,
"race may never. . . operate as a stereotype; . . . this Court has rejected the assumption that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike; . . . stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts—their very worth as citizens—according to a criterion barred to the Government by history and the Constitution. . . . can only cause continued hurt and injury, . . . all racial stereotypes harm and demean individuals. . ."