In 1996, Justice Scalia provided an explanation of the Court's application of its standards of scrutiny by writing:

“I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: 'rational basis' scrutiny, intermediate scrutiny, or strict scrutiny.  These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. 

After reading Justice Scalia's opinion on the Court's standards of review, one may ask what is the Court arguing about.  However, Justice O'Connor provides an answer

"This dispute regarding the appropriate standard of review may strike some as a lawyers' quibble over words, but it is not.  The standard of review establishes whether and when the Court and Constitution allow the Government to employ racial classifications.  A lower standard signals that the Government may resort to racial distinctions more readily"  (Metro Broadcasting, Inc. v. Federal Communications Commission  497 U.S. 547 (1990))

In theory at least, intermediate scrutiny is less difficult for a program to survive than strict scrutiny.  Regardless of what we may believe or what Justice Scalia and O'Connor have said about the lack of clarity in these standards, Justice O'Connor and other justices take these standards very seriously.  For example, government programs have so rarely survived a strict scrutiny review that Justice Marshall referred to strict scrutiny as "strict in theory and fatal in fact."  (Regents of the University of California v. Bakke, 438 U.S. 265 (1978)). 

The strict v. intermediate scrutiny conflict involves the forces of two groups of justices and spans 17 years from the 1970s into the 1990s.  Justices Brennan, Marshall, and Blackmun were consistently on the intermediate scrutiny side.  Justice Powell was on the strict scrutiny side until his retirement from the Court.  Justice O'Connor is now the strict scrutiny champion.  Some Justices are against any race- or ethnic-based classifications but accept the use of strict scrutiny.  Other Justices' opinions are too vague to classify as supporting intermediate or strict scrutiny.   

The Formative Years

In 1978, the Justices dealt with an admissions program to a medical school that reserved a specific number of seats for members of a "minority group" described as one that included "Blacks," "Chicanos," "Asians," and "American Indians.”  The Justices issued six separate opinions in Regents of the University of California v. Bakke, 438 U.S. 265 (1978).  Justices Brennan, White, Marshall, and Blackmun concluded that, to be constitutional, racial and ethnic classifications used as a "remedy for disadvantages cast on minorities by past racial prejudice" be reviewed using the intermediate standard that requires programs to

"serve important governmental objectives, and must be substantially related to achievement of those objectives."

Justice Powell appeared to support the more stringent "strict scrutiny" review for these programs but no clear preference for a standard of scrutiny was identified in Bakke.  The Court pieced together a judgment from the Justices six different opinions that said

• the University's admissions program was unconstitutional, 
  

• race may be considered in admissions programs, and 
  

• Bakke should be admitted to the University's medical school. 

In 1980, the Justices issued several more opinions in Fullilove ET AL v. Klutznick, Secretary of Commerce, ET AL (448 U. S. 448), which involved a federal program that required grantees to subcontract to Minority Business Enterprises (MBE) owned and  controlled by "Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts."  Sides were again drawn over the use of strict or intermediate scrutiny.

Chief Justice Burger with Justices White and Powell used a standard that appeared to be strict scrutiny since they reviewed the program to determine if it was narrowly tailored.  Justice Stevens issued a separate opinion in which he viewed the program as unconstitutional because it was not "narrowly-tailored"--a key part of the strict scrutiny standard.  However, Justice Powell, noting that he preferred to "articulate judicial standards of review in conventional terms," added a separate opinion in which he specifically used strict scrutiny to evaluate the program.  On the other hand, Justices Marshall, Brennan, and Blackmun returned to their Bakke decision and stated that intermediate scrutiny should be used.  Finally, Justices Stewart and Rehnquist took a position against programs that provided benefits based on racial classifications.  As a result of the various separate opinions, Congress' program was upheld by six justices without reaching a majority opinion on the standard of scrutiny to apply.  

• Justice Powell found the program to be constitutional while applying strict scrutiny,
  
  

• Justices Marshall, Brennan, and Blackmun found it to be constitutional while applying the intermediate scrutiny standard, and
  
  

• Chief Justice Burger and Justice White seemed to apply a standard similar to strict scrutiny and found the program constitutional.    

Although a majority opinion was not reached in regard to the standard of scrutiny to apply, this decision was used to support a review of federal programs using intermediate scrutiny

In 1986, when Wygant ET AL v. Jackson Board of Education ET AL (476 U. S. 267) was decided, Justice Stewart had left the Court and Justice O'Connor took his seat.  The program in Wygant involved a collective bargaining agreement between a Michigan school board and its union that included a layoff provision with a preference for retaining "minority personnel" classified as "Black, American Indian, Oriental, or of Spanish descendancy."

In their opinions, Justices Powell, Chief Justice Burger, and Justices Rehnquist and O'Connor applied strict scrutiny to the program and found that it was unconstitutional.  On the other hand, Justices Marshall, Brennan, and Blackmun again supported the use of intermediate scrutiny.  Justice White found that the program was unconstitutional while Justice Stevens found the program constitutional based on the future educational benefits of the program.  A line was now drawn, if somewhat gray, in which federal programs were judged using intermediate scrutiny while state and local programs were judged using strict scrutiny.

In 1989, the Court decided City of Richmond v. J. A. Croson Co., 488 U. S. 469 (1989) which involved a Richmond subcontracting program that provided preferences on subcontracts for Minority Business Enterprises owned and controlled by "minority group members" who were defined as "Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts."  By this time, Chief Justice Burger and Justice Powell had left the Court.  Justice Rehnquist had been elevated to Chief Justice and Justices Scalia and Kennedy had been appointed to the Court. 

Although there were various opinions, the Court (majority of O'Connor, Rehnquist, White, Stevens, and Kennedy) applied a strict scrutiny review and agreed that Richmond did not prove the existence of a compelling interest and that the program was not narrowly tailored.  However, Justices Marshall, Brennan, and Blackmun continued to hold to their opinions from Bakke, Fullilove, and Wygant, that "race-conscious classifications designed to further remedial goals 'must serve important governmental objectives and must be substantially related to achievement of those objectives.'"  Justice Scalia agreed that all governmental classifications by race must be subjected to strict scrutiny.  This majority opinion strengthened the use of strict scrutiny in state and local programs.

Metro Broadcasting--the Pivotal Court Opinion 

In 1990, one year after Croson, the Court decided Metro Broadcasting, Inc. v. Federal Communications Commission 497 U.S. 547 (1990).  Metro Broadcasting, like Fullilove, can be distinguished from Wygant and Croson because it involved a federal program.  The Federal Communications Commission managed two programs designed to expand "broadcast diversity" through minority ownership of radio and television stations.  In these programs "minority" included "those of Black, Hispanic Surnamed, American Eskimo, Aleut, American Indian and Asiatic American extraction."  Both programs had been mandated by Congress.

Justices Brennan, Marshall, and Blackmun now joined by Justices White and Stevens, put together a majority opinion and concluded that

"benign race-conscious measures mandated by Congress -- even if those measures are not 'remedial' in the sense of being designed to compensate victims of past governmental or societal discrimination -- are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives."

Not only did Justices Marshall, Blackmun, and Brennan form a majority opinion that would employ intermediate scrutiny to race-based classifications, they now enlarged it to programs that were not strictly remedial.  Needless to say, this opinion brought strong dissent from Justices O'Connor, Chief Justice Rehnquist, and Justices Scalia and Kennedy.  In their dissent they said

"The Court's departure from our cases is disturbing enough, but more disturbing still is the renewed toleration of racial classifications that its new standard of review embodies."

Metro Broadcasting Meets Adarand III

In 1995, when Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) was before the Court, it was before a Court much different from the one that heard Metro Broadcasting.  The "intermediate scrutiny" group of Justices Marshall, Brennan, and Blackmun were gone.  Justice Brennan left in 1990, Justice Marshall left in 1991, and Justice Blackmun left in 1994.  Additionally, Justice White, who voted with the majority in Metro Broadcasting, left the Court in 1993.  Not only were 4 of the 5 majority Justices in Metro Broadcasting gone from the Court, but the dissenting group of Justices O'Connor, Scalia, Kennedy, and Chief Justice Rehnquist were now joined by Justice Thomas. 

If Justice Thomas joined the four dissenting Metro Justices in a decision, they would form a majority opinion.  However, one thing stood in their way--Metro Broadcasting--which stood as precedent.  In her opinion, Justice O'Connor began the process of dismantling Metro Broadcasting by saying

"Despite lingering uncertainty in the details, however, the Court's cases through Croson had established three general propositions with respect to governmental racial classifications.  First, skepticism: "`[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination,'" Wygant, 476 U.S., at 273 (plurality opinion of Powell, J.); Fullilove, 448 U.S., at 491 (opinion of Burger, C. J.); see also id., at 523 (Stewart, J., dissenting) ("[A]ny official action that treats a person differently on account of his race or ethnic origin is inherently suspect"); McLaughlin, 379 U.S., at 192 ("[R]acial classifications [are] 'constitutionally suspect'"); Hirabayashi, 320 U.S., at 100 ("Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people"). Second, consistency: "the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification," Croson, 488 U.S., at 494 (plurality opinion); id., at 520 (Scalia, J., concurring in judgment); see also Bakke, 438 U.S., at 289 -290 (opinion of Powell, J.), i. e., all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized. And third, congruence: "[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U.S., at 93 ; see also Weinberger v. Wiesenfeld, 420 U.S., at 638 , n. 2; Bolling v. Sharpe, 347 U.S., at 500 . Taken together, these three propositions lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny."

With this statement in place, Justice O'Connor had set the stage to show that Metro was unlike past decisions.  She said

"By adopting intermediate scrutiny as the standard of review for congressionally mandated 'benign' racial classifications, Metro Broadcasting departed from prior cases in two significant respects. First, it turned its back on Croson's explanation of why strict scrutiny of all governmental racial classifications is essential:

"Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to 'smoke out' illegitimate use of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen 'fit' this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype." Croson, supra, at 493 (plurality opinion of O'Connor, J.). 

Second, Metro Broadcasting squarely rejected one of the three propositions established by the Court's earlier equal protection cases, namely, congruence between the standards applicable to federal and state racial classifications, and in so doing also undermined the other two skepticism of all racial classifications, and consistency of treatment irrespective of the race of the burdened or benefited group."

With this presentation complete, Justice O'Connor then said "Metro Broadcasting was thus a significant departure from much of what had come before it."  The analysis developed by Justice O'Connor was necessary to defeat the precedent established in Metro Broadcasting since precedent or "stare decisis" is important to the Court.  One way to overturn precedent is by proving that the decision setting the precedent was wrong.  For example, 

"The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit.  With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921).  Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.  See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13, 16.  At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was, for that very reason, doomed.  (Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992))

Once Metro Broadcasting was labeled as "error" it was "doomed."  Justice O'Connor, joined by Justices Scalia, Kennedy, Thomas, and Chief Justice Rehnquist now had a majority opinion.  They executed Metro Broadcasting with the following 

"all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.  In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.  To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled."

With Metro Broadcasting out of the way, the Justices then moved to Fullilove and said

"Of course, it follows that to the extent (if any) that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling.  But we need not decide today whether the program upheld in Fullilove would survive strict scrutiny as our more recent cases have defined it."

In his dissent from the majority opinion, Justice Stevens said

"This is the third time in the Court's entire history that it has considered the constitutionality of a federal affirmative-action program. On each of the two prior occasions, the first in 1980, Fullilove v. Klutznick, 448 U.S. 448 , and the second in 1990, Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, the Court upheld the program."

In summing up his dissent, Justice Stevens further said

"The majority's concept of "consistency" ignores a difference, fundamental to the idea of equal protection, between oppression and assistance.  The majority's concept of "congruence" ignores a difference, fundamental to our constitutional system, between the Federal Government and the States.  And the majority's concept of stare decisis ignores the force of binding precedent."