The Supreme Court/The Supreme Court.iso/mac/ascii/1993/93_1841/93_1841.zd2

Text File | 1995-06-12 | 7KB | 152 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 93-1841
--------
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 Ginsburg, with whom Justice Breyer joins,
dissenting.
  For the reasons stated by Justice Souter, and in
view of the attention the political branches are currently
giving the matter of affirmative action, I see no compel-
ling cause for the intervention the Court has made in
this case.  I further agree with Justice Stevens that,
in this area, large deference is owed by the Judiciary to
-Congress' institutional competence and constitutional
authority to overcome historic racial subjugation.-  Ante,
at 12-13 (Stevens, J., dissenting); see id., at 14-15.
I write separately to underscore not the differences the
several opinions in this case display, but the consider-
able field of agreement-the common understandings and
concerns-revealed in opinions that together speak for a
majority of the Court.

                      I
  The statutes and regulations at issue, as the Court
indicates, were adopted by the political branches in
response to an -unfortunate reality-: -[t]he unhappy
persistence of both the practice and the lingering effects
of racial discrimination against minority groups in this
country.-  Ante, at 35 (lead opinion).  The United States
suffers from those lingering effects because, for most of
our Nation's history, the idea that -we are just one
race,- ante, at 2 (Scalia, J., concurring in part and
concurring in judgment), was not embraced.  For
generations, our lawmakers and judges were unprepared
to say that there is in this land no superior race, no
race inferior to any other.  In Plessy v. Ferguson, 163
U. S. 537 (1896), not only did this Court endorse the
oppressive practice of race segregation, but even Justice
Harlan, the advocate of a -color-blind- Constitution,
stated:
-The white race deems itself to be the dominant
race in this country.  And so it is, in prestige, in
achievements, in education, in wealth and in power.
So, I doubt not, it will continue to be for all time, if
it remains true to its great heritage and holds fast
to the principles of constitutional liberty.- Id., at 559
(Harlan, J., dissenting).
Not until Loving v. Virginia, 388 U. S. 1 (1967), which
held unconstitutional Virginia's ban on interracial
marriages, could one say with security that the Constitu-
tion and this Court would abide no measure -designed
to maintain White Supremacy.- Id., at 11.
  The divisions in this difficult case should not obscure
the Court's recognition of the persistence of racial
inequality and a majority's acknowledgement of
Congress' authority to act affirmatively, not only to end
discrimination, but also to counteract discrimination's
lingering effects.  Ante, at 35 (lead opinion); see also
ante, at 6 (Souter, J., dissenting).  Those effects,
reflective of a system of racial caste only recently ended,
are evident in our workplaces, markets, and neighbor-
hoods.  Job applicants with identical resumes, qualifica-
tions, and interview styles still experience different
receptions, depending on their race.  White and Afri-
can-American consumers still encounter different deals.
People of color looking for housing still face discrimina-
tory treatment by landlords, real estate agents, and
mortgage lenders.  Minority entrepreneurs sometimes
fail to gain contracts though they are the low bidders,
and they are sometimes refused work even after winning
contracts.  Bias both conscious and unconscious,
reflecting traditional and unexamined habits of
thought, keeps up barriers that must come down if
equal opportunity and nondiscrimination are ever
genuinely to become this country's law and practice.
  Given this history and its practical consequences,
Congress surely can conclude that a carefully designed
affirmative action program may help to realize, finally,
the -equal protection of the laws- the Fourteenth
Amendment has promised since 1868.

                     II
  The lead opinion uses one term, -strict scrutiny,- to
describe the standard of judicial review for all govern-
mental classifications by race.  Ante, at 34-36.  But that
opinion's elaboration strongly suggests that the strict
standard announced is indeed -fatal- for classifications
burdening groups that have suffered discrimination in
our society.  That seems to me, and, I believe, to the
Court, the enduring lesson one should draw from
Korematsu v. United States, 323 U. S. 214 (1944); for in
that case, scrutiny the Court described as -most rigid,-
id., at 216, nonetheless yielded a pass for an odious,
gravely injurious racial classification.  See ante, at 12
(lead opinion).  A Korematsu-type classification, as I
read the opinions in this case, will never again survive
scrutiny: such a classification, history and precedent
instruct, properly ranks as prohibited.
  For a classification made to hasten the day when -we
are just one race,- ante, at 2 (Scalia, J., concurring in
part and concurring in judgment), however, the lead
opinion has dispelled the notion that -strict scrutiny- is
-`fatal in fact.'-  Ante, at 35 (quoting Fullilove v.
Klutznick, 448 U. S. 448, 519 (1980) (Marshall, J.,
concurring in judgment)).  Properly, a majority of the
Court calls for review that is searching, in order to
ferret out classifications in reality malign, but masquer-
ading as benign.  See ante, at 26-28 (lead opinion).  The
Court's once lax review of sex-based classifications
demonstrates the need for such suspicion.  See, e.g.,
Hoyt v. Florida, 368 U. S. 57, 60 (1961) (upholding
women's -privilege- of automatic exemption from jury
service); Goesaert v. Cleary, 335 U. S. 464 (1948)
(upholding Michigan law barring women from employ-
ment as bartenders); see also Johnston & Knapp, Sex
Discrimination by Law: A Study in Judicial Perspective,
46 N. Y. U. L. Rev. 675 (1971).  Today's decision thus
usefully reiterates that the purpose of strict scrutiny -is
precisely to distinguish legitimate from illegitimate uses
of race in governmental decisionmaking,- ante, at 26
(lead opinion), -to `differentiate between' permissible and
impermissible governmental use of race,- id., at 27, to
distinguish -`between a -No Trespassing- sign and a
welcome mat.'-  Id., at 28.
  Close review also is in order for this further reason.
As Justice Souter points out, ante, at 7 (dissenting
opinion), and as this very case shows, some members of
the historically favored race can be hurt by catch-up
mechanisms designed to cope with the lingering effects
of entrenched racial subjugation.  Court review can
ensure that preferences are not so large as to trammel
unduly upon the opportunities of others or interfere too
harshly with legitimate expectations of persons in once-
preferred groups.  See, e.g., Bridgeport Guardians, Inc.
v. Bridgeport Civil Service Comm'n, 482 F. 2d 1333,
1341 (CA2 1973).



                *     *     *
  While I would not disturb the programs challenged in
this case, and would leave their improvement to the
political branches, I see today's decision as one that
allows our precedent to evolve, still to be informed by
and responsive to changing conditions.