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The Adarand Chronicle:  From Bakke to Adarand VII

The Supporting Cases

  The Adarand decisions were affected by several Supreme Court cases.  Of  these cases, the Bakke, Fullilove, Wygant, Croson, and 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 (Wygant), 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.  They include
  • classifications based on race or ethnic origin

  • equal protection issues under the United States Constitution, and

  • the change in Supreme Court membership and their viewpoints.

Classifications Based On Race Or Ethnic Origin

Each 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.

Many 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

"the 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 School.  Respondent, echoing the courts below, labels it a racial quota.  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 ethnic status."  (Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 @ 289 (1978))

These 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 review.  A justice's opinion may be affected by the justice's life experience but it will be carefully analyzed.

Equal Protection Issues Under The United States Constitution

The supporting decisions involve three parts of two Amendments to the United States Constitution.  They include

  • Section 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)

  • Section 5 of the Fourteenth Amendment which gives the United States Congress the power to enforce Section 1 through legislation.  (Fullilove)

  • The Fifth Amendment under which the Supreme Court applies equal protection requirements directed at the federal government.  (Metro Broadcasting)

One 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 issue.  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? 

Justice O'Connor addressed this issue in Adarand III and said that

"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." 

However, she then said "We need not, and do not, address these differences today."  These differences may be one of the subjects of Adarand VIII which is currently before the Court.

The Change In Supreme Court Membership And Their Viewpoints

The Supreme Court justices view and interpret the Constitution from their own viewpoint and life experience.  This may sound simple but these cases display that vividly.  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."

Finally, 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.   The 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. 

Although 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 Court.

Copyright 2001 by Robert M. Antonio



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