In 1996, Justice Scalia provided an
explanation of the Court's application of its standards of scrutiny
“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.
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
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
U.S. 547 (1990))
theory at least, intermediate scrutiny is less difficult for a
program to survive than strict scrutiny.
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)).
strict v. intermediate scrutiny conflict involves the forces of
two groups of justices and spans 17 years from the 1970s into the
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.
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."
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
University's admissions program was unconstitutional,
may be considered in admissions programs, and
should be admitted to the University's medical school.
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.
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
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
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.
Powell found the program to be constitutional while applying
Marshall, Brennan, and Blackmun found it to be constitutional
while applying the intermediate scrutiny standard, and
Justice Burger and Justice White seemed to apply a standard
similar to strict scrutiny and found the program
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
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."
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.
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.
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.
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.
Pivotal Court Opinion
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
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.
Brennan, Marshall, and Blackmun now joined by Justices White and
Stevens, put together a majority opinion and concluded that
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
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
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."
Broadcasting Meets Adarand III
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
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
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
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
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
this statement in place, Justice O'Connor had set the stage to
show that Metro was unlike past decisions. She said
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:
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.).
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
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
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.
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))
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
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
Metro Broadcasting out of the way, the Justices then moved to Fullilove and
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."
his dissent from the majority opinion, Justice Stevens said
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
summing up his dissent, Justice Stevens further said
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."
Adarand III, the Court ended the question of different standards
All programs are now subject to strict scrutiny.
OF THE UNITED STATES CONGRESS
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
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
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.”
Chief Justice Burger also said
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
He explained that Congress differed from a court in
collecting facts to support a remedy.
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."
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
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
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
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
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
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
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
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
need not, and do not, address these differences today."
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.