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The Adarand Chronicle:  From Bakke to Adarand VII

by Robert Antonio

May 29, 2001


"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." (Towne v. Eisner , 245 U.S. 418 (1918)) 

Justice Oliver Wendell Holmes

Adarand is about two issues.  First, whether a government may employ race- or ethnic-based preferences to advance a program.  Second, the Supreme Court itself.

The first issue can be answered quickly.  Currently, governments may use race- or ethnic-based preferences to advance a program.  The second issue is more complex because we are dealing with a living, breathing, and changing Court.  The Supreme Court Justices are drawn from the general population and they take their intellect and their life experience to the Court.  Once on the Court, they review cases with their eyes focused on the Constitution, Court precedent, and Court processes.  However, the Constitution does not provide all answers.  To fill in the open spaces left in the Constitution, the Justices add their thoughts and their beliefs to the words in the Constitution.  With this in mind, we may approach Adarand.

Since 1978, the Court has argued but has not resolved the following questions entirely

  • Should the Court apply the identical strict scrutiny review to a federal, state, or municipal governmental program that uses race- or ethnic-based classifications?

  • Should the United States Congress be viewed differently from a state or local government when it exercises its authority under Section 5 of the Fourteenth Amendment.


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."  

With Adarand III, the Court ended the question of different standards of review.  All programs are now subject to strict scrutiny.


Section 5 of the Fourteenth Amendment to the Constitution provides Congress with the power to enforce the equal protection clause in Section 1 of the Fourteenth Amendment when states violate that Section.  The Constitution therefore places the Congress above the states in equal protection issues.  This difference in authority was pondered and expressed in several opinions in these decisions.  For example, in Fullilove, Chief Justice Burger said

"Here we deal, as we noted earlier, not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress.  It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees.  Congress not only may induce voluntary action to assure compliance with existing federal statutory or constitutional antidiscrimination provisions, but also where Congress has authority to declare certain conduct unlawful, it may, as here, authorize and induce state action to avoid such conduct.”   

However, Chief Justice Burger also said  

"Congress may employ racial or ethnic classifications in exercising its Spending or other legislative powers only if those classifications do not violate the equal protection component of the Due Process Clause of the Fifth Amendment.  We recognize the need for careful judicial evaluation to assure that any congressional program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal."  

Although Chief Justice Burger clearly identified a difference between the remedial powers of Congress and the states, he also noted that any Congressional objective must be "narrowly tailored" to the achievement of that goal in accordance with the Fifth Amendment.  Is there a difference for Congressional action under the Fourteenth and Fifth amendments?  In Fullilove, Justice Powell commented on the evidence that Congress needed to support a finding of a compelling interest.  He explained that Congress differed from a court in collecting facts to support a remedy.  He said

"But Congress is not expected to act as though it were duty bound to find facts and make conclusions of law. The creation of national rules for the governance of our society simply does not entail the same concept of recordmaking that is appropriate to a judicial or administrative proceeding.  Congress has no responsibility to confine its vision to the facts and evidence adduced by particular parties. Instead, its special attribute as a legislative body lies in its broader mission to investigate and consider all facts and opinions that may be relevant to the resolution of an issue."

"Acceptance of petitioners' argument would force Congress to make specific factual findings with respect to each legislative action.  Such a requirement would mark an unprecedented imposition of adjudicatory procedures upon a coordinate branch of Government."

So it appears there may be an evidentiary issue.  In Croson, Justice O'Connor also tackled this subject.  The City of Richmond had claimed that the City Council was comparable to the Congress and Justice O'Connor said

"Appellant and its supporting amici rely heavily on Fullilove for the proposition that a city council, like Congress, need not make specific findings of discrimination to engage in race-conscious relief."

She then said

"What appellant ignores is that Congress, unlike any State or political subdivision, has a specific constitutional mandate to enforce the dictates of the Fourteenth Amendment. The power to "enforce" may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations."

Further she said

"That Congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the States and their political subdivisions are free to decide that such remedies are appropriate.  Section 1 of the Fourteenth Amendment is an explicit constraint on state power, and the States must undertake any remedial efforts in accordance with that provision.  To hold otherwise would be to cede control over the content of the Equal Protection Clause to the 50 state legislatures and their myriad political subdivisions.  The mere recitation of a benign or compensatory purpose for the use of a racial classification would essentially entitle the States to exercise the full power of Congress under 5 of the Fourteenth Amendment and insulate any racial classification from judicial scrutiny under 1. We believe that such a result would be contrary to the intentions the Framers of the Fourteenth Amendment, who desired to place clear limits on the States' use of race as a criterion for legislative action, and to have the federal courts enforce those limitations."

From her opinion in Croson, it appears that Justice O'Connor accepted the fact that the Congress could use  "societal discrimination" to justify the use of racial- or ethnic-classifications.  Her statement appears to support a view that Congress did not need to make specific findings of discrimination to engage in race-conscious relief.  Like Justice Powell's opinion in Fullilove, it appears that Justice O'Connor perceives a difference in the evidence needed by the Congress and the states to support a finding of a compelling interest.  When Adarand III was decided in 1995, Justice O'Connor noted

"Justice Stevens also claims that we have ignored any difference between federal and state legislatures.  But requiring that Congress, like the States, enact racial classifications only when doing so is necessary to further a "compelling interest" does not contravene any principle of appropriate respect for a co-equal Branch of the Government.  It is true that various Members of this Court have taken different views of the authority 5 of the Fourteenth Amendment confers upon Congress to deal with the problem of racial discrimination, and the extent to which courts should defer to Congress' exercise of that authority."

In her opinion, Justice O'Connor highlights the "compelling interest" part of a strict scrutiny review which deals with the evidence needed to employ race-based classifications.  Whatever she meant, she was not ready to tell us.  She concluded by saying

"We need not, and do not, address these differences today."

Although federal, state, and local programs using race- or ethnic-based classifications will be reviewed using strict scrutiny, is there now a difference in supporting a "compelling interest" for federal, state, and local programs.  If there is, perhaps Justice O'Connor will tell us in Adarand VIII which should arrive in late 2001 or 2002.

Copyright © 2001 by Robert M. Antonio



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