The Supreme Court/The Supreme Court.iso/mac/ascii/1993/93_1841/93_1841.zd1

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SUPREME COURT OF THE UNITED STATES
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No. 93-1841
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ADARAND CONSTRUCTORS, INC., PETITIONER v.
FEDERICO PENA, SECRETARY OF
 TRANSPORTATION, et al.
on writ of certiorari to the united states court
of appeals for the tenth circuit
[June 12, 1995]

  Justice Souter, with whom Justice Ginsburg and
Justice Breyer join, dissenting.
  As this case worked its way through the federal courts
prior to the grant of certiorari that brought it here,
petitioner Adarand Constructors, Inc. was understood to
have raised only one significant claim: that before a
federal agency may exceed the goals adopted by Con-
gress in implementing a race-based remedial program,
the Fifth and Fourteenth Amendments require the
agency to make specific findings of discrimination, as
under Richmond v. J. A. Croson Co., 488 U. S. 469
(1989), sufficient to justify surpassing the congressional
objective.  See 16 F. 3d 1537, 1544 (CA10 1994) (-The
gravamen of Adarand's argument is that the CFLHD
must make particularized findings of past discrimination
to justify its race-conscious SCC program under Croson
because the precise goals of the challenged SCC program
were fashioned and specified by an agency and not by
Congress-); Adarand Constructors, Inc. v. Skinner, 790
F. Supp. 240, 242 (Colo. 1992) (-Plaintiff's motion for
summary judgment seeks a declaratory judgment and
permanent injunction against the DOT, the FHA and the
CFLHD until specific findings of discrimination are
made by the defendants as allegedly required by City of
Richmond v. Croson-); cf. Complaint -28, App. 20
(federal regulations violate the Fourteenth and Fifteenth
Amendments by requiring -the use of racial and gender
preferences in the award of federally financed highway
construction contracts, without any findings of past
discrimination in the award of such contracts-).
  Although the petition for certiorari added an anteced-
ent question challenging the use, under the Fifth and
Fourteenth Amendments, of any standard below strict
scrutiny to judge the constitutionality of the statutes
under which the respondents acted, I would not have
entertained that question in this case. The statutory
scheme must be treated as constitutional if Fullilove v.
Klutznick, 448 U. S. 448 (1980), is applied, and petition-
ers did not identify any of the factual premises on which
Fullilove rested as having disappeared since that case
was decided.
  As the Court's opinion explains in detail, the scheme
in question provides financial incentives to general
contractors to hire subcontractors who have been
certified as disadvantaged business enterprises on the
basis of certain race-based presumptions.  See generally
ante, at 3-6.  These statutes (or the originals, of which
the current ones are reenactments) have previously been
justified as providing remedies for the continuing effects
of past discrimination, see, e.g., Fullilove, supra, at
465-466 (citing legislative history describing SBA 8(a)
as remedial); S. Rep. No. 100-4, p. 11 (1987) (Committee
Report stating that DBE provision of STURAA was
-necessary to remedy the discrimination faced by socially
and economically disadvantaged persons-), and the
Government has so defended them in this case, Brief for
Respondents 33.  Since petitioner has not claimed the
obsolescence of any particular fact on which the Fullilove
Court upheld the statute, no issue has come up to us
that might be resolved in a way that would render
Fullilove inapposite.  See, e.g., 16 F. 3d, at 1544
(-Adarand has stipulated that section 502 of the Small
Business Act . . . satisfies the evidentiary requirements
of Fullilove-); Memorandum of Points and Authorities in
Support of Plaintiff's Motion for Summary Judgment in
No. 90-C-1413 (D. Colo.), p. 12 (Fullilove is not applica-
ble to the case at bar because -[f]irst and foremost,
Fullilove stands for only one proposition relevant here:
the ability of the U. S. Congress, under certain limited
circumstances, to adopt a race-base[d] remedy-).
  In these circumstances, I agree with Justice
Stevens's conclusion that stare decisis compels the
application of Fullilove.  Although Fullilove did not
reflect doctrinal consistency, its several opinions pro-
duced a result on shared grounds that petitioner does
not attack: that discrimination in the construction
industry had been subject to government acquiescence,
with effects that remain and that may be addressed by
some preferential treatment falling within the congres-
sional power under 5 of the Fourteenth Amendment.
Fullilove, 448 U. S., at 477-478 (opinion of Burger, C.
J.); id., at 503 (Powell, J., concurring); id., at 520-521
(Marshall, J., concurring in judgment).  Once Fullilove
is applied, as Justice Stevens points out, it follows
that the statutes in question here (which are substan-
tially better tailored to the harm being remedied than
the statute endorsed in Fullilove, see ante, at 19-25
(Stevens, J., dissenting)) pass muster under Fifth
Amendment due process and Fourteenth Amendment
equal protection.
  The Court today, however, does not reach the applica-
tion of Fullilove to the facts of this case, and on remand
it will be incumbent on the Government and petitioner
to address anew the facts upon which statutes like these
must be judged on the Government's remedial theory of
justification: facts about the current effects of past
discrimination, the necessity for a preferential remedy,
and the suitability of this particular preferential scheme.
Petitioner could, of course, have raised all of these
issues under the standard employed by the Fullilove
plurality, and without now trying to read the current
congressional evidentiary record that may bear on
resolving these issues I have to recognize the possibility
that proof of changed facts might have rendered
Fullilove's conclusion obsolete as judged under the
Fullilove plurality's own standard.  Be that as it may,
it seems fair to ask whether the statutes will meet a
different fate from what Fullilove would have decreed.
The answer is, quite probably not, though of course
there will be some interpretive forks in the road before
the significance of strict scrutiny for congressional
remedial statutes becomes entirely clear.
  The result in Fullilove was controlled by the plurality
for whom Chief Justice Burger spoke in announcing the
judgment.  Although his opinion did not adopt any label
for the standard it applied, and although it was later
seen as calling for less than strict scrutiny, Metro
Broadcasting, Inc. v. FCC, 497 U. S. 547, 564 (1990),
none other than Justice Powell joined the plurality
opinion as comporting with his own view that a strict
scrutiny standard should be applied to all injurious race-
based classifications.  Fullilove, supra, at 495-496
(Powell, J., concurring) (-Although I would place greater
emphasis than the Chief Justice on the need to
articulate judicial standards of review in conventional
terms, I view his opinion announcing the judgment as
substantially in accord with my views-).  Chief Justice
Burger's noncategorical approach is probably best seen
not as more lenient than strict scrutiny but as reflecting
his conviction that the treble-tiered scrutiny structure
merely embroidered on a single standard of reasonable-
ness whenever an equal protection challenge required a
balancing of justification against probable harm.  See
Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432,
451 (1985) (Stevens, J., concurring, joined by Burger, C.
J.).  Indeed, the Court's very recognition today that
strict scrutiny can be compatible with the survival of a
classification so reviewed demonstrates that our concepts
of equal protection enjoy a greater elasticity than the
standard categories might suggest.  See ante, at 35 (-we
wish to dispel the notion that strict scrutiny is `strict in
theory, but fatal in fact.'  Fullilove, supra, at 519
(Marshall, J., concurring in judgment)-); see also Mis-
souri v. Jenkins, post, at ___ (O'Connor, J., concurring)
(slip op., at 11) (-But it is not true that strict scrutiny
is `strict in theory, but fatal in fact'-).
   In assessing the degree to which today's holding por-
tends a departure from past practice, it is also worth
noting that nothing in today's opinion implies any view
of Congress's 5 power and the deference due its
exercise that differs from the views expressed by the
Fullilove plurality.  The Court simply notes the observa-
tion in Croson -that the Court's `treatment of an exercise
of congressional power in Fullilove cannot be dispositive
here,' because Croson's facts did not implicate Congress'
broad power under 5 of the Fourteenth Amendment,-
ante, at 20, and explains that there is disagreement
among today's majority about the extent of the 5 power,
ante, at 28-29.  There is therefore no reason to treat the
opinion as affecting one way or another the views of 5
power, described as -broad,- ante, at 20, -unique,-
Fullilove, supra, at 500 (Powell, J., concurring), and
-unlike [that of] any state or political subdivision,-
Croson, 488 U. S., at 490 (opinion of O'Connor, J.).  See
also Jenkins, post, at __ (O'Connor, J., concurring) (slip
op., at 11) (-Congress . . . enjoys `-discretion in deter-
mining whether and what legislation is needed to secure
the guarantees of the Fourteenth Amendment,-' Croson,
488 U. S., at 490 (quoting Katzenbach v. Morgan, 384 U.
S., at 651)-).  Thus, today's decision should leave 5
exactly where it is as the source of an interest of the
national government sufficiently important to satisfy the
corresponding requirement of the strict scrutiny test.
  Finally, I should say that I do not understand that
today's decision will necessarily have any effect on the
resolution of an issue that was just as pertinent under
Fullilove's unlabeled standard as it is under the stan-
dard of strict scrutiny now adopted by the Court.  The
Court has long accepted the view that constitutional
authority to remedy past discrimination is not limited to
the power to forbid its continuation, but extends to
eliminating those effects that would otherwise persist
and skew the operation of public systems even in the
absence of current intent to practice any discrimination.
See Albemarle Paper Co. v. Moody, 422 U. S. 405, 418
(1975) (-Where racial discrimination is concerned, `the
[district] court has not merely the power but the duty to
render a decree which will so far as possible eliminate
the discriminatory effects of the past as well as bar like
discrimination in the future,'-) quoting Louisiana v.
United States, 380 U. S. 145, 154 (1965).  This is so
whether the remedial authority is exercised by a court,
see ibid.; Green v. School Board of New Kent County,
391 U. S. 430, 437 (1968), the Congress, see Fullilove,
448 U. S., at 502 (Powell, J., concurring), or some other
legislature, see Croson, supra, at 491-492 (opinion of
O'Connor, J.).  Indeed, a majority of the Court today
reiterates that there are circumstances in which Govern-
ment may, consistently with the Constitution, adopt
programs aimed at remedying the effects of past invidi-
ous discrimination.  See, e.g., ante, at __, __ (opinion of
O'Connor, J.) (slip op., at 26-27, 35); id., at __
(Stevens, J., with whom Ginsburg, J., joins, dissenting)
(slip op., at 2); id., at __, __ (Ginsburg, J., with whom
Breyer, J. joins, dissenting) (slip op. at 3, 6); Jenkins,
post, at __ (O'Connor, J., concurring) (slip op. at 11)
(noting the critical difference -between unconstitutional
discrimination and narrowly tailored remedial programs
that legislatures may enact to further the compelling
governmental interest in redressing the effects of past
discrimination-).
  When the extirpation of lingering discriminatory
effects is thought to require a catch-up mechanism, like
the racially preferential inducement under the statutes
considered here, the result may be that some members
of the historically favored race are hurt by that remedial
mechanism, however innocent they may be of any
personal responsibility for any discriminatory conduct.
When this price is considered reasonable, it is in part
because it is a price to be paid only temporarily; if the
justification for the preference is eliminating the effects
of a past practice, the assumption is that the effects will
themselves recede into the past, becoming attenuated
and finally disappearing.  Thus, Justice Powell wrote in
his concurring opinion in Fullilove that the -temporary
nature of this remedy ensures that a race-conscious
program will not last longer than the discriminatory
effects it is designed to eliminate.-  448 U. S., at 513;
ante, at 37 (opinion of the Court).
  Surely the transition from the Fullilove plurality view
(in which Justice Powell joined) to today's strict scrutiny
(which will presumably be applied as Justice Powell
employed it) does not signal a change in the standard by
which the burden of a remedial racial preference is to be
judged as reasonable or not at any given time.  If in the
District Court Adarand had chosen to press a challenge
to the reasonableness of the burden of these statutes,
more than a decade after Fullilove had examined such
a burden, I doubt that the claim would have fared any
differently from the way it will now be treated on
remand from this Court.