Adarand decisions were affected by several Supreme Court cases.
these cases, the Bakke, Fullilove, Wygant,
Metro Broadcasting cases deserve special attention.
These cases were decided from 1978 to 1990 and each is
noted in the Supreme Court's decision in Adarand III.
They include cases dealing with (1) student body diversity
in a medical school (Bakke), subcontracting under a grant program
(Fullilove), layoff provision in a collective bargaining agreement
a city's subcontracting program (Croson), and radio and
television broadcast diversity (Metro Broadcasting).
At first glance, one may ask what do all these cases have
to do with Adarand.
However, there are at least three issues that tie these
cases with Adarand.
based on race or ethnic origin
protection issues under the United States Constitution, and
change in Supreme Court membership and their viewpoints.
Based On Race Or Ethnic Origin
of the supporting cases can be grouped under the broad term of
affirmative action with members of one racial or ethnic
classification being given preference over members of another
racial or ethnic classification.
In each of these cases, one class is given preference as
a result of a prior preference.
believe that the key issue in an affirmative action program is
whether there is a goal or a quota.
That idea is brought to rest in Bakke,
where Justice Powell said
parties fight a sharp preliminary action over the proper
characterization of the special admissions program.
Petitioner prefers to view it as establishing a
"goal" of minority representation in the Medical
Respondent, echoing the courts below, labels it a racial
This semantic distinction is beside the point: the
special admissions program is undeniably a classification based
on race and ethnic background.
To the extent that there existed a pool of at least
minimally qualified minority applicants to fill the 16 special
admissions seats, white applicants could compete only for 84
seats in the entering class, rather than the 100 open to
minority applicants. Whether this limitation is described as a
quota or a goal, it is a line drawn on the basis of race and
of the Univ. of Cal. v. Bakke, 438 U.S. 265 @ 289 (1978)
cases deal with the use of a racial or ethnic classifications.
The Supreme Court views these classifications as
"suspect" and requiring a careful evaluation of their
A justice's opinion may be affected by the justice's life
experience but it will be carefully analyzed.
Protection Issues Under The United States Constitution
supporting decisions involve three parts of two Amendments to
the United States Constitution.
1 of the Fourteenth Amendment which prohibits states from
making laws that deny the rights of citizens of the United
States. (Bakke, Wygant, and Croson)
5 of the Fourteenth Amendment which gives the United States
Congress the power to enforce Section 1 through legislation.
Fifth Amendment under which the Supreme Court applies equal
protection requirements directed at the federal government.
of the key issues in Adarand deals with the authority of
federal, state, and local governments.
In these decisions, the Supreme Court bumps into this
Our Constitution clearly prohibits states from depriving
United States citizens of their rights.
The Supreme Court added a similar prohibition to the
Fifth Amendment of the Constitution through its decisions in the past 60 years.
However, what may the United States Congress do to
enforce Section 1 of the Fourteenth Amendment.
Does it suffer the same restraints as the Supreme Court
placed upon it under the Fifth Amendment?
O'Connor addressed this issue in Adarand III and said that
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."
she then said "We need not, and do not, address these
These differences may be one of the subjects of Adarand
VIII which is currently before the Court.
Change In Supreme Court Membership And Their Viewpoints
Supreme Court justices view and interpret the Constitution from
their own viewpoint and life experience.
This may sound simple but these cases display that
Justices Brennan, Marshall, and Blackmun, first fight it
out with justices Powell and Rehnquist and then with Chief
Justice Rehnquist and Justices O'Connor, Scalia, and Kennedy. The basic contest deals with the standard of review to
apply to affirmative action programs.
Justices Brennan, Marshall, and Blackmun propose the
"intermediate standard" of scrutiny in the initial
cases to remedy the effects of past discrimination.
Justices Powell, Rehnquist, O'Connor, Scalia, and Kennedy
favor "strict scrutiny."
in their last stand, Justices Brennan, Marshall, and Blackmun
joined by justices White and Stevens issued the pivotal Supreme
Court's majority opinion in Metro Broadcasting.
Metro Broadcasting decision was issued on June 27, 1990.
Justice Brennan left the Court, in less than a month, on
July 20, 1990; Justice Marshall left the Court on October 1,
1991; Justice Thomas joined the Court on October 23, 1991; and
Justice Blackmun left the Court on August 3, 1994.
Justice Brennan's opinion in Metro Broadcasting was carefully crafted, only
Justice Stevens was left from the majority in that decision.
When the Court heard and decided Adarand III in 1995,
Justice O'Connor, Chief Justice Rehnquist, and Justices Scalia
and Kennedy had been joined by Justice Thomas.
The Metro decision was at the mercy of the Rehnquist