Lead Opinion
announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which is for the Court except insofar as it might be inconsistent with the views expressed in Justice Scalia’s concurrence, and an opinion with respect to Part III-C in which Justice Kennedy joins.
Petitioner Adarand Constructors, Inc., claims that the Federal Government’s practice of giving general contractors on Government projects a financial incentive to hire subcontractors controlled by “socially and economically disadvantaged individuals,” and in particular, the Government’s use of race-based presumptions in identifying such individuals, violates the equal protection component of the Fifth Amendment’s Due Process Clause. The Court of Appeals rejected Adarand’s claim. We conclude, however, that courts should analyze cases of this kind under a different standard of review than the one the Court of Appeals applied. We there
HH
In 1989, the Central Federal Lands Highway Division (CFLHD), which is part of the United States Department of Transportation (DOT), awarded the prime contract for a highway construction project in Colorado to Mountain Gravel & Construction Company. Mountain Gravel then solicited bids from subcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway construction company specializing in guardrail work, submitted the low bid. Gonzales Construction Company also submitted a bid.
The prime contract’s terms provide that Mountain Gravel would receive additional compensation if it hired subcontractors certified as small businesses controlled by “socially and economically disadvantaged individuals,” App. 24. Gonzales is certified as such a business; Adarand is not. Mountain Gravel awarded the subcontract to Gonzales, despite Ada-rand’s low bid, and Mountain Gravel’s Chief Estimator has submitted an affidavit stating that Mountain Gravel would have accepted Adarand’s bid, had it not been for the additional payment it received by hiring Gonzales instead. Id., at 28-31. Federal law requires that a subcontracting clause similar to the one used here must appear in most federal agency contracts, and it also requires the clause to state that “[t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the [Small Business] Administration pursuant to section 8(a) of the Small Business Act.” 15 U. S. C. §§ 637(d)(2), (3). Adarand claims that the presumption set forth in that statute discriminates on the basis of
These fairly straightforward facts implicate a complex scheme of federal statutes and regulations, to which we now turn. The Small Business Act (Act), 72 Stat. 384, as amended, 15 U. S. C. § 631 et seq., declares it to be “the policy of the United States that small business concerns, [and] small business concerns owned and controlled by socially and economically disadvantaged individuals,... shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency.” § 8(d)(1), 15 U. S. C. § 637(d)(1). The Act defines “socially disadvantaged individuals” as “those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities,” § 8(a)(5), 15 U. S. C. § 637(a)(5), and it defines “economically disadvantaged individuals” as “those socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged.” § 8(a)(6)(A), 15 U. S. C. § 637(a)(6)(A).
In furtherance of the policy stated in § 8(d)(1), the Act establishes “[t]he Government-wide goal for participation by small business concerns owned and controlled by socially and economically disadvantaged individuals” at “not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year.” 15 U. S. C. § 644(g)(1). It also requires the head of each federal agency to set agency-specific goals for participation by businesses controlled by socially and economically disadvantaged individuals. Ibid.
The- Small Business Administration (SBA) has implemented these statutory directives in a variety of ways, two of which are relevant here. One is the “8(a) program,”
The other SBA program relevant to this case is the “8(d) subcontracting program,” which unlike the 8(a) program is limited to eligibility for subcontracting provisions like the one at issue here. In determining eligibility, the SBA presumes social disadvantage based on membership in certain minority groups, just as in the 8(a) program, and again appears to require an individualized, although “less restrictive,” showing of economic disadvantage, § 124.106(b). A different set of regulations, however, says that members of minority groups wishing to participate in the 8(d) subcontracting program are entitled to a race-based presumption of social and economic disadvantage. 48 CFR §§19.001,
The contract giving rise to the dispute in this case came about as a result of the Surface Transportation and Uniform Relocation Assistance Act of 1987, Pub. L. 100-17, 101 Stat. 132 (STURAA), a DOT appropriations measure. Section 106(c)(1) of STURAA provides that “not less than 10 percent” of the appropriated funds “shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.” 101 Stat. 145. STURAA adopts the Small Business Act’s definition of “socially and economically disadvantaged individual,” including the applicable race-based presumptions, and adds that “women shall be presumed to be socially and economically disadvantaged individuals for purposes of this subsection.” § 106(c)(2)(B), 101 Stat. 146. STURAA also requires the Secretary of Transportation to establish “minimum uniform criteria for State governments to use in certifying whether a concern qualifies for purposes of this subsection.” § 106(c)(4), 101 Stat. 146. The Secretary has done so in 49 CFR pt. 23, subpt. D (1994). Those regulations say that the certifying authority should presume both social and economic disadvantage (i. e., eligibility to participate) if the applicant belongs to certain racial groups, or is a woman. 49 CFR §23.62 (1994); 49 CFR pt. 23, subpt. D, App. C (1994). As with the SBA programs, third parties may come forward with evidence in an effort to rebut the presumption of disadvantage for a particular business. 49 CFR §23.69 (1994).
The operative clause in the contract in this case reads as follows:
*209 “Subcontracting. This subsection is supplemented to include a Disadvantaged Business Enterprise (DBE) Development and Subcontracting Provision as follows:
“Monetary compensation is offered for awarding subcontracts to small business concerns owned and controlled by socially and economically disadvantaged individuals....
“A small business concern will be considered a DBE after it has been certified as such by the U. S. Small Business Administration or any State Highway Agency. Certification by other Government agencies, counties, or cities may be acceptable on an individual basis provided the Contracting Officer has determined the certifying agency has an acceptable and viable DBE certification program. If the Contractor requests payment under this provision, the Contractor shall furnish the engineer with acceptable evidence of the subcontractor(s) DBE certification and shall furnish one certified copy of the executed subcontract(s).
“The Contractor will be paid an amount computed as follows:
“1. If a subcontract is awarded to one DBE, 10 percent of the final amount of the approved DBE subcontract, not to exceed 1.5 percent of the original contract amount.
“2. If subcontracts are awarded to two or more DBEs, 10 percent of the final amount of the approved DBE subcontracts, not to exceed 2 percent of the original contract amount.” App. 24-26.
To benefit from this clause, Mountain Gravel had to hire a subcontractor who had been certified as a small disadvantaged business by the SBA, a state highway agency, or some other certifying authority acceptable to the contracting officer. Any of the three routes to such certification described above — SBA’s 8(a) or 8(d) program, or certification by a State
After losing the guardrail subcontract to Gonzales, Ada-rand filed suit against various federal officials in the United States District Court for the District of Colorado, claiming that the race-based presumptions involved in the use of subcontracting compensation clauses violate Adarand’s right to equal protection. The District Court granted the Government’s motion for summary judgment. Adarand Constructors, Inc. v. Skinner,
II
Adarand, in addition to its general prayer for “such other and further relief as to the Court seems just and equitable,” specifically seeks declaratory and injunctive relief against any future use of subcontractor compensation clauses. App. 22-23 (complaint). Before reaching the merits of Adarand’s challenge, we must consider whether Adarand has standing to seek forward-looking relief. Adarand’s allegation that it has lost a contract in the past because of a subcontractor compensation clause of course entitles it to seek damages for the loss of that contract (we express no view, however, as to whether sovereign immunity would bar such relief on these facts). But as we explained in Los Angeles v. Lyons,
If Adarand is to maintain its claim for forward-looking relief, our cases require it to allege that the use of subcontractor compensation clauses in the future constitutes “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife,
It is less clear, however, that the future use of subcontractor compensation clauses will cause Adarand “imminent” injury. We said in Lujan that “[although ‘imminence’ is con-cededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is ‘certainly impending.’” Lujan, supra, at 565, n. 2. We therefore must ask whether Adarand has made an adequate showing that sometime in the relatively near future it will bid on another Government contract that offers financial incentives to a prime contractor for hiring disadvantaged subcontractors.
Ill
Respondents urge that “[t]he Subcontracting Compensation Clause program is ... a program based on disadvantage, not on race,” and thus that it is subject only to “the most
Adarand’s claim arises under the Fifth Amendment to the Constitution, which provides that “No person shall ... be deprived of life, liberty, or property, without due process of law.” Although this Court has always understood that Clause to provide some measure of protection against arbitrary treatment by the Federal Government, it is not as explicit a guarantee of equal treatment as the Fourteenth Amendment, which provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws” (emphasis added). Our cases have accorded varying degrees of significance to the difference in the language of those two Clauses. We think it necessary to revisit the issue here.
A
Through the 1940’s, this Court had routinely taken the view in non-raee-related cases that, “fujnlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.” Detroit Bank v. United States,
Eighteen months later, the Court again approved wartime measures directed at persons of Japanese ancestry. Korematsu v. United States,
In Bolling v. Sharpe,
Bolling’s facts concerned school desegregation, but its reasoning was not so limited. The Court’s observations that “[djistinctions between citizens solely because of their ancestry are by their very nature odious,” Hirabayashi, supra, at 100, and that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,”
Later cases in contexts other than school desegregation did not distinguish between the duties of the States and the Federal Government to avoid racial classifications. Consider, for example, the following passage from McLaughlin v. Florida,
“[W]e deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States. This strong policy renders racial classifications ‘constitutionally suspect/ Bolling v. Sharpe,347 U. S. 497 , 499; and subject to the ‘most rigid scrutiny/ Korematsu v. United States,323 U. S. 214 , 216; and ‘in most circumstances irrelevant’ to any constitutionally acceptable legislative purpose, Hirabayashi v. United States,320 U. S. 81 , 100.” Id., at 191-192.
McLaughlin's, reliance on cases involving federal action for the standards applicable to a case involving state legislation
Cases decided after McLaughlin continued to treat the equal protection obligations imposed by the Fifth and the Fourteenth Amendments as indistinguishable; one commentator observed that “[i]n case after case, fifth amendment equal protection problems are discussed on the assumption that fourteenth amendment precedents are controlling.” Karst, The Fifth Amendment’s Guarantee of Equal Protection, 55 N. C. L. Rev. 541, 554 (1977). Loving v. Virginia,
B
Most of the cases discussed above involved classifications burdening groups that have suffered discrimination in our society. In 1978, the Court confronted the question whether race-based governmental action designed to benefit such groups should also be subject to “the most rigid scrutiny.” Regents of Univ. of Cal. v. Bakke,
Two years after Bakke, the Court faced another challenge to remedial race-based action, this time involving action undertaken by the Federal Government. In Fullilove v. Klutznick,
In Wygant v. Jackson Bd. of Ed.,
The Court’s failure to produce a majority opinion in Bakke, Fullilove, and Wygant left unresolved the proper analysis for remedial race-based governmental action. See United States v. Paradise,
The Court resolved the issue, at least in part, in 1989. Richmond v. J. A. Croson Co.,
With Croson, the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments. But Croson of course had no occasion to declare what standard of review the Fifth Amendment requires for such action taken by the Federal Government. Croson observed simply- that the Court’s “treatment of an exercise of congressional power in Fulli-love cannot be dispositive here,” because Croson’s facts did not implicate Congress’ broad power under § 5 of the Fourteenth Amendment. Id., at 491 (plurality opinion); see also id., at 522 (Scalia, J., concurring in judgment) (“[Wjithout revisiting what we held in Fullilove ... , I do not believe our decision in that case controls the one before us here”). On the other hand, the Court subsequently indicated that Croson had at least some bearing on federal race-based ac
Despite 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: “Any preference based on racial or ethnic criteria must necessarily receive a most searching examination,’ ” Wygant,
“If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, [KorematsuJ, but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process. When they touch upon an individual’s race or ethnic background, he is entitled to ,a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling*225 governmental interest. The Constitution guarantees that right to every person regardless of his background. Shelley v. Kraemer, 334 U. S. [1, 22 (1948)].” Bakke, supra, at 299 (opinion of Powell, J.) (footnote omitted).
A year later, however, the Court took a surprising turn. Metro Broadcasting, Inc. v. FCC, supra, involved a Fifth Amendment challenge to two race-based policies of the Federal Communications Commission (FCC). In Metro Broadcasting, the Court repudiated the long-held notion that “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government” than it does on a State to afford equal protection of the laws, Bolling, supra, at 500. It did so by holding that “benign” federal racial classifications need only satisfy intermediate scrutiny, even though Croson had recently concluded that such classifications enacted by a State must satisfy strict scrutiny. “[BJenign” federal racial classifications, the Court said, “ — 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 objectives.” Metro Broadcasting,
Applying this test, the Court first noted that the FCC policies at issue did not serve as a remedy for past discrimination. Id., at 566. Proceeding on the assumption that the policies were nonetheless “benign,” it concluded that they served the “important governmental objective” of “enhancing broadcast diversity,” id., at 566-567, and that they were
By 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 Cro-son’s explanation of why strict scrutiny of all governmental racial classifications is essential:
“Absent 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 uses 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.).
We adhere to that view today, despite the surface appeal of holding “benign” racial classifications to a lower standard, because “it may not always be clear that a so-called preference is in fact benign,” Bakke, supra, at 298 (opinion of Powell, J.). “[M]ore than good motives should be required when government seeks to allocate its resources by way of an explicit racial classification system.” Days, Fullilove, 96 Yale L. J. 453, 485 (1987).
Second, 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
The three propositions undermined by Metro Broadcasting all derive from the basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race — a group classification long recognized as “in most circumstances irrelevant and therefore prohibited,” Hirabayashi,
In dissent, Justice Stevens criticizes us for “delivering] a disconcerting lecture about the evils of governmental racial classifications,” post, at 242. With respect, we believe his criticisms reflect a serious misunderstanding of our opinion.
Justice Stevens chides us for our “supposed inability to differentiate between ‘invidious’ and ‘benign’ discrimination,” because it is in his view sufficient that “people understand the difference between good intentions and bad.” Post, at 245. But, as we have just explained, the point of strict scrutiny is to “differentiate between” permissible and impermissible governmental use of race. And Justice Stevens himself has already explained in his dissent in Full-ilove why “good intentions” alone are not enough to sustain
Perhaps it is not the standard of strict scrutiny itself, but our use of the concepts of “consistency” and “congruence” in conjunction with it, that leads Justice Stevens to dissent. According to Justice Stevens, our view of consistency “equate[s] remedial preferences with invidious discrimination,” post, at 246, and ignores the difference between “an engine of oppression” and an effort “to foster equality in society,” or, more colorfully, “between a ‘No Trespassing’ sign and a welcome mat,” post, at 243, 245. It does nothing of the kind. The principle of consistency simply means that whenever the government treats any person unequally be
Consistency does recognize that any individual suffers an injury when he or she is disadvantaged by the government because of his or her race, whatever that race may be. This Court clearly stated that principle in Croson, see
Justice 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 coequal 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 authority. See, e. g., Metro Broadcasting,
C
“Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification.” Arizona v. Rumsey,
As we have explained, Metro Broadcasting undermined important principles of this Court’s equal protection jurisprudence, established in a line of cases stretching back over 50 years, see supra, at 213-225. Those principles together stood for an “embracing” and “intrinsically soun[d]” understanding of equal protection “verified by experience,” namely, that the Constitution imposes upon federal, state, and local governmental actors the same obligation to respect
Our past practice in similar situations supports our action today. In United States v. Dixon,
It is worth pointing out the difference between the applications of stare decisis in this case and in Planned Parenthood of Southeastern Pa. v. Casey,
Justice Stevens takes us to task for what he perceives to be an erroneous application of the doctrine of stare decisis. But again, he misunderstands our position. We have acknowledged that, after Croson, “some uncertainty persisted with respect to the standard of review for federal racial classifications,” supra, at 223, and we therefore do not say that we “merely restor[e] the status quo ante” today, post, at 257. But as we have described supra, at 213-227, we think that well-settled legal principles pointed toward a conclusion different from that reached in Metro Broadcasting, and we therefore disagree with Justice Stevens that “the law at the time of that decision was entirely open to the result the Court reached,” post, at 257. We also disagree with Justice Stevens that Justice Stewart’s dissenting opinion in Fullilove supports his “novelty” argument, see post, at 258-259, and n. 13. Justice Stewart said that “[u]nder our Constitution, any official action that treats a person differently on account of his race or ethnic origin is inherently suspect and presumptively invalid,” and that “‘[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.’” Fullilove,
“The real problem,” Justice Frankfurter explained, “is whether a principle shall prevail over its later misapplications.” Helvering,
D
Our action today makes explicit what Justice Powell thought implicit in the Fullilove lead opinion: Federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest. See Fullilove,
> j — j
Because our decision today alters the playing field in some important respects, we think it best to remand the case to the lower courts for further consideration in light of the principles we have announced. The Court of Appeals, following Metro Broadcasting and Fullilove, analyzed the case in terms of intermediate scrutiny. It upheld the challenged statutes and regulations because it found them to be “narrowly tailored to achieve [their] significant governmental purpose of providing subcontracting opportunities for small disadvantaged business enterprises.”
Moreover, unresolved questions remain concerning the details of the complex regulatory regimes implicated by the use of subcontractor compensation clauses. For example, the SBA’s 8(a) program requires an individualized inquiry into the economic disadvantage of every participant, see 13 CFR § 124.106(a) (1994), whereas the DOT’s regulations implementing STURAA § 106(c) do not require certifying authorities to make such individualized inquiries, see 49 CFR §23.62 (1994); 49 CFR pt. 23, subpt. D, App. C (1994). And the regulations seem unclear as to whether 8(d) subcontractors must make individualized showings, or instead whether the race-based presumption applies both to social and economic disadvantage, compare 13 CFR § 124.106(b) (1994) (apparently requiring 8(d) participants to make an individualized showing), with 48 CFR § 19.703(a)(2) (1994) (apparently allowing 8(d) subcontractors to invoke the race-based presumption for social and economic disadvantage). See generally Part I, supra. We also note an apparent discrepancy between the definitions of which socially disadvantaged individuals qualify as economically disadvantaged for the 8(a) and 8(d) programs; the former requires a showing that such individuals’ ability to compete has been impaired “as compared to others in the same or similar line of business who are not socially disadvantaged,'” 13 CFR § 124.106(a) (l)(i) (1994) (emphasis added), while the latter requires that showing only “as compared to others in the same or similar line of business,” § 124.106(b)(1). The question whether any of the ways in which the Government uses subcontractor compensation clauses can survive strict scrutiny, and any relevance distinctions such as these may have to that ques
Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Notes
Justices Roberts, Murphy, and Jackson filed vigorous dissents; Justice Murphy argued that the challenged order “falls into the ugly abyss of racism.” Korematsu,
Concurrence Opinion
concurring in part and concurring in the judgment.
I agree with the majority’s conclusion that strict scrutiny applies to all government classifications based on race. I write separately, however, to express my disagreement with the premise underlying Justice Stevens’ arid Justice Ginsburg’s dissents: that there is a racial paternalism exception to the principle of equal protection. I believe that there is a “moral [and] constitutional equivalence,” post, at 243 (Stevens, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).
These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, “[i]nvidious [racial] discrimination is an en
In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice.
It should be obvious that every racial classification helps, in a narrow sense, some races and hurts others. As to the races benefited, the classification could surely be called “benign.” Accordingly, whether a law relying upon racial taxonomy is “benign” or “malign,” post, at 275 (Ginsburg, J., dissenting); see also post, at 247 (Stevens, J., dissenting) (addressing differences between “invidious” and “benign” discrimination), either tons on “ ‘whose ox is gored,’ ” Regents of Univ. of Cal. v. Bakke,
Dissenting Opinion
dissenting.
Instead of deciding this case in accordance with controlling precedent, the Court today delivers a disconcerting lecture about the evils of governmental racial classifications. For its text the Court has selected three propositions, represented by the bywords “skepticism,” “consistency,” and “congruence.” See ante, at 223-224. I shall comment on each of these propositions, then add a few words about stare deci-sis, and finally explain why I believe this Court has a duty to affirm the judgment of the Court of Appeals.
HH
The Court’s concept of skepticism is, at least m principle, a good statement of law and of common sense. Undoubtedly, a court should be wary of a governmental decision that relies upon a racial classification. “Because racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic,” a reviewing court must satisfy itself that the reasons for any such classification are “clearly identified and unquestionably legitimate.” Fullilove v. Klutznick,
The Court s concept of consistency assumes that there is no significant difference between a decision by the majority to impose a special burden on the members of a minority race and a decision by the majority to provide a benefit to certain members of that minority notwithstanding its incidental burden on some members of the majority. In my opinion that assumption is untenable. There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society. No sensible conception of the Government’s constitutional obligation to “govern impartially,” Hampton v. Mow Sun Wong,
The consistency that the Court espouses would disregard the difference between a “No Trespassing” sign and a welcome mat. It would treat a Dixiecrat Senator’s decision to vote against Thurgood Marshall’s confirmation in order to keep African-Americans off the Supreme Court as on a par with President Johnson’s evaluation of his nominee’s race as a positive factor. It would equate a law that made black citizens ineligible for military service with a program aimed at recruiting black soldiers. An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. An interest in “consistency” does not justify treating differences as though they were similarities.
The Court’s explanation for treating dissimilar race-based decisions as though they were equally objectionable is a supposed inability to differentiate between “invidious” and “benign” discrimination. Ante, at 225-226. But the term “affirmative action” is common and well understood. Its presence in everyday parlance shows that people understand the. difference between good intentions and bad. As with any legal concept, some cases may be difficult to classify,
Indeed, our jurisprudence has made the standard to be applied in cases of invidious discrimination turn on whether the discrimination is “intentional,” or whether, by contrast, it merely has a discriminatory “effect.” Washington v. Davis,
Nothing is inherently wrong with applying a single standard to fundamentally different situations, as long as that standard takes relevant differences into account. For example, if the Court in all equal protection cases were to insist that differential treatment be justified by relevant characteristics of the members of the favored and disfavored classes that provide a legitimate basis for disparate treatment, such a standard would treat dissimilar cases differently while still recognizing that there is, after all, only one Equal Protection Clause. See Cleburne v. Cleburne Living Center, Inc.,
As a matter of constitutional and democratic principle, a decision by representatives of the majority to discriminate against the members of a minority race is fundamentally different from those same representatives’ decision to impose incidental costs on the majority of their constituents in order to provide a benefit to a disadvantaged minority.
III
The Court s concept of congruence assumes that there is no significant difference between a decision by the Congress of the United States to adopt an affirmative-action program and such a decision by a State or a municipality. In my opinion that assumption is untenable. It ignores important practical and legal differences between federal and state or local decisionmakers.
These differences have been identified repeatedly and consistently both in opinions of the Court and in separate opinions authored by Members of today’s majority. Thus, in Metro Broadcasting, Inc. v. FCC,
The majority in Metro Broadcasting and the plurality in Fullilove were not alone in relying upon a critical distinction between federal and state programs. In his separate opinion in Richmond v. J. A. Croson Co.,
“What the record shows, in other words, is that racial discrimination against any group finds a more ready expression at the state and local than at the federal level. To the children of the Founding Fathers, this should come as no surprise. An acute awareness of the heightened danger of oppression from political factions in small, rather than large, political units dates to the very beginning of our national history. See G. Wood, The Creation of the American Republic, 1776-1787, pp. 499-506 (1969). As James Madison observed in support of the proposed Constitution’s enhancement of national powers:
“ ‘The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plan of oppression. Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.’ The Federalist No. 10, pp. 82-84 (C. Rossiter ed. 1961).” Id., at 523 (opinion concurring in judgment).
In her plurality opinion in Croson, Justice O’Connor also emphasized the importance of this distinction when she responded to the city’s argument that Fullilove was controlling. She wrote:
*252 “What 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 situations. The Civil War Amendments themselves worked a dramatic change in the balance between congressional and state power over matters of race.”488 U. S., at 490 (joined by Rehnquist, C. J., and White, J.) (citations omitted).
An additional reason for giving greater deference to the National Legislature than to a local lawmaking body is that federal affirmative-action programs represent the will of our entire Nation’s elected representatives, whereas a state or local program may have an impact on nonresident entities who played no part in the decision to enact it. Thus, in the state or local context, individuals who were unable to vote for the local representatives who enacted a race-conscious program may nonetheless feel the effects of that program. This difference recalls the goals of the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, which permits Congress to legislate on certain matters of national importance while denying power to the States in this area for fear of undue impact upon out-of-state residents. See Southern Pacific Co. v. Arizona ex rel. Sullivan,
Ironically, after all of the time, effort, and paper this Court has expended in differentiating between federal and state affirmative action, the majority today virtually ignores the issue. See ante, at 230-231. It provides not a word of direct explanation for its sudden and enormous departure from
Presumably, the majority is now satisfied that its theory of “congruence” between the substantive rights provided by the Fifth and Fourteenth Amendments disposes of the objection based upon divided constitutional powers. But it is one thing to say (as no one seems to dispute) that the Fifth Amendment encompasses a general guarantee of equal protection as broad as that contained within the Fourteenth Amendment. It is another thing entirely to say that Congress’ institutional competence and constitutional authority entitles it to no greater deference' when it enacts a program designed to foster equality than the deference due a state legislature.
In my judgment, the Court’s novel doctrine of “congruence” is seriously misguided. Congressional deliberations about a matter as important as affirmative action should be accorded far greater deference than those of a State or municipality.
IV
The Court’s concept of stare decisis treats some of the language we have used in explaining our decisions as though it
This 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,
In the Court’s view, our decision in Metro Broadcasting was inconsistent with the rule announced in Richmond v. J. A. Croson Co.,
Second, Metro Broadcasting’s holding rested on more than its application of “intermediate scrutiny.” Indeed, I have always believed that, labels notwithstanding, the Federal Communications Commission (FCC) program we upheld in that case would have satisfied any of our various standards in affirmative-action cases — including the one the majority fashions today. What truly distinguishes Metro Broadcasting from our other affirmative-action precedents is the distinctive goal of the federal program in that case. Instead of merely seeking to remedy past discrimination, the FCC program was intended to achieve future benefits in the form of broadcast diversity. Reliance on race as a legitimate means of achieving diversity was first endorsed by Justice Powell in Regents of Univ. of Cal. v. Bakke,
Thus, prior to Metro Broadcasting, the interest in diversity had been mentioned in a few opinions, but it is perfectly clear that the Court had not yet decided whether that interest had sufficient magnitude to justify a racial classification. Metro Broadcasting, of course, answered that question in the
The Court’s suggestion that it may be necessary in the future to overrule Fullilove in order to restore the fabric of the law, ante, at 235, is even more disingenuous than its treatment of Metro Broadcasting. For the Court endorses the “strict scrutiny” standard that Justice Powell applied in Bakke, see ante, at 224, and acknowledges that he applied that standard in Fullilove as well, ante, at 218-219. Moreover, Chief Justice Burger also expressly concluded that the program we considered in Fullilove was valid under any of the tests articulated in Bakke, which of course included Justice Powell’s.
V
The Court’s holding in Fullilove surely governs the result in this case. The Public Works Employment Act of 1977 (1977 Act), 91 Stat. 116, which this Court upheld in Fullilove, is different in several critical respects from the portions of the Small Business Act (SBA), 72 Stat. 384, as amended, 15 U. S. C. § 631 et seq., and STURAA, 101 Stat. 132, challenged in this case. Each of those differences makes the current program designed to provide assistance to DBE’s significantly less objectionable than the 1977 categorical grant of $400 million in exchange for a 10% set-aside in public contracts to “a class of investors defined solely by racial characteristics.” Fullilove,
Unlike the 1977 Act, the present statutory scheme does not make race the sole criterion of eligibility for participation in the program. Race does give rise to a rebuttable presumption of social disadvantage which, at least under STURAA,
More importantly, race is not a sufficient qualification. Whereas a millionaire with a long history of financial successes, who was a member of numerous social clubs and trade associations, would have qualified for a preference under the 1977 Act merely because he was an Asian-American or an African-American, see Fullilove,
The current program contains another forward-looking component that the 1977 set-asides did not share. Section 8(a) of the SBA provides for periodic review of the status of DBE’s, 15 U.S.C. §§637(a)(BMQ (1988 ed., Supp. V); 13 CFR § 124.602(a) (1995),
Significantly, the current program, unlike the 1977 set-aside, does not establish any requirement — numerical or otherwise — that a general contractor must hire DBE subcontractors. The program we upheld in Fullilove required that 10% of the federal grant for every federally funded project be expended on minority business enterprises. In contrast, the current program contains no quota. Although it provides monetary incentives to general contractors to hire DBE subcontractors, it does not require them to hire DBE’s,
Finally, the record shows a dramatic contrast between the sparse deliberations that preceded the 1977 Act, see Fullilove,
VI
My skeptical scrutiny of the Court’s opinion leaves me in dissent. The 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. I would affirm the judgment of the Court of Appeals.
As Justice Ginsburg observes, post, at 275-276, the majority’s “flexible” approach to “strict scrutiny” may well take into account differences between benign and invidious programs. The majority specifically notes that strict scrutiny can accommodate “ ‘relevant differences,’ ” ante, at 228; surely the intent of a government actor and the effects of a program are relevant to its constitutionality. See Missouri v. Jenkins, ante, at 112 (O’Connor, J., concurring) (“[Tjime and again, we have recognized the ample authority legislatures possess to combat racial injustice .... It is only by applying strict scrutiny that we can distinguish 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”).
Even if this is so, however, I think it is unfortunate that the majority insists on applying the label “strict scrutiny” to benign race-based programs. That label has usually been understood to spell the death of any governmental action to which a court may apply it. The Court suggests today that “strict scrutiny” means something different — something less strict — when applied to benign racial classifications. Although I agree that benign programs deserve different treatment than invidious programs, there is a danger that the fatal language of “strict scrutiny” will
These were, of course, neither the sole nor the most shameful burdens the Government imposed on Japanese-Americans during that War. They were, however, the only such burdens this Court had occasion to address in Hirabayashi and Korematsu. See Korematsu,
See Morton v. Mancari,
For example, in Richmond v. J. A. Croson Co.,
In his concurrence, Justice Thomas argues that the most significant cost associated with an affirmative-action program is its adverse stigmatic effect on its intended beneficiaries. Ante, at 240-241. Although I agree that this cost may be more significant than many people realize, see Fullilove v. Klutznick,
Finally, although Justice Thomas is more concerned about the potential effects of these programs than the intent of those who enacted them (a proposition at odds with this Court’s jurisprudence, see Washington v. Davis,
As I noted in Wygant:
“There is ... a critical difference between a decision to exclude a member of a minority race because of his or her skin color and a decision*249 to include more members of the minority in a school faculty for that reason.
“The exclusionary decision rests on the false premise that differences in race, or in the color of a person’s skin, reflect real differences that are relevant to a person’s right to share in the blessings of a free society. As noted, that premise is ‘utterly irrational,’ Cleburne v. Cleburne Living Center,473 U. S. 432 , 452 (1985), and repugnant to the principles of a free and democratic society. Nevertheless, the fact that persons of different races do, indeed have differently colored skin, may give rise to a belief that there is some significant difference between such persons. The inclusion of minority teachers in the educational process inevitably tends to dispel that illusion whereas their exclusion could only tend to foster it. The inclusionary decision is consistent with the principle that all men are created equal; the exclusionary decision is at war with that principle. One decision accords with the Equal Protection Clause of the Fourteenth Amendment; the other does not. Thus, consideration of whether the consciousness of race is exclusionary or inclusionary plainly distinguishes the Board’s valid purpose in this case from a race-conscious decision that would reinforce assumptions of inequality.” 476 U. S., at. 316-317 (dissenting opinion).
Despite the majority’s reliance on Korematsu v. United States,
We have rejected this proposition outside of the affirmative-action context as well. In Hampton v. Mow Sun Wong,
“The federal sovereign, like the States, must govern impartially. The concept of equal justice under law is served by the Fifth Amendment’s guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment. Although both Amendments require the same type of analysis, see Buckley v. Valeo,424 U. S. 1 , 93 [(1976)], the Court of Appeals correctly stated that the two protections are not always coextensive. Not only does the language of the two Amendments differ, but more importantly, there may be overriding national interests which justify*254 selective federal legislation that would be unacceptable for an individual State. On the other hand, when a federal rule is applicable to only a limited territory, such as the District of Columbia, or an insular possession, and when there is no special national interest involved, the Due Process Clause has been construed as having the same significance as the Equal Protection Clause.”
The funding for the preferences challenged in this case comes from the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA), 101 Stat. 132, in which Congress has granted funds to the States in exchange for a commitment to foster subcontracting by disadvantaged business enterprises, or “DBE’s.” STURAA is also the source of funding for DBE preferences in federal highway contracting. Approximately 98% of STURAA’s funding is allocated to the States. Brief for Respondents 38, n. 34. Moreover, under STURAA States are empowered to certify businesses as “disadvantaged” for purposes of receiving subcontracting preferences in both state and federal contracts. STURAA § 106(c)(4), 101 Stat. 146.
In this case, Adarand has sued only the federal officials responsible for implementing federal highway contracting policy; it has not directly challenged DBE preferences granted in state contracts funded by STURAA. It is not entirely clear, then, whether the majority’s “congruence” rationale would apply to federally regulated state contracts, which may conceivably be within the majority’s view of Congress’ § 5 authority even if the federal contracts are not. See Metro Broadcasting,
Because Congress has acted with respect to the States in enacting STURAA, we need not revisit today the difficult question of § 5’s application to pure federal regulation of individuals.
We have read § 5 as a positive grant of authority to Congress, not just to punish violations, but also to define and expand the scope of the Equal Protection Clause. Katzenbach v. Morgan,
Our skeptical observer might also notice that Justice O’Connor’s explanation for departing from settled precedent is joined only by Justice Kennedy. Ante, at 204. Three Members of the majority thus provide no explanation whatsoever for their unwillingness to adhere to the doctrine of stare decisis.
Of course, Justice Stewart believed that his view, disapproving of racial classifications of any kind, was consistent with this Court’s precedents. See ante, at 234-236, citing
STURAA accords a rebuttable presumption of both social and economic disadvantage to members of racial minority groups. 49 CFR §23.62 (1994). In contrast, §8(a) of the SBA accords a presumption only of social disadvantage, 13 CFR § 124.105(b) (1995); the applicant has the burden of demonstrating economic disadvantage, id., § 124.106. Finally, §8(d) of the SBA accords at least a presumption of social disadvantage, but it is ambiguous as to whether economic disadvantage is presumed or
The Government apparently takes this exclusion seriously. See Autek Systems Corp. v. United States,
“The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it.” Ante, at 237.
“Our findings clearly state that groups such as black Americans, Hispanic Americans, and Native Americans, have been and continue to be discriminated against and that this discrimination has led to the social disadvantagement of persons identified by society as members of those groups.” 124 Cong. Rec. 34097 (1978)
The Department of Transportation strongly urges States to institute periodic review of businesses certified as DBE’s under STURAA, 49 CFR pt. 23, subpt. D, App. A (1994), but it does not mandate such review. Respondents point us to no provisions for review of § 8(d) certification, although such review may be derivative for those businesses that receive § 8(d) certification as a result of § 8(a) or STURAA certification.
Respondents point us to the following legislative history:
H. R. 5612, To amend the Small Business Act to Extend the current SBA 8(a) Pilot Program: Hearing on H. R. 5612 before the Senate Select Committee on Small Business, 96th Cong., 2d Sess. (1980); Small and Minority Business in the Decade of the 1980’s (Part 1): Hearings before the House Committee on Small Business, 97th Cong., 1st Sess. (1981); Minority Business and Its Contribution to the U. S. Economy: Hearing before the Senate Committee on Small Business, 97th Cong., 2d Sess. (1982); Federal Contracting Opportunities for Minority and Women-Owned Businesses— An Examination of the 8(d) Subcontracting Program: Hearings before the Senate Committee on Small Business, 98th Cong., 1st Sess. (1983); Women Entrepreneurs — Their Success and Problems: Hearing before the Senate Committee on Small Business, 98th Cong., 2d Sess. (1984); State of Hispanic Small Business in America: Hearing before the Subcommittee on SBA and SBIC Authority, Minority Enterprise, and General Small Business Problems of the House Committee on Small Business, 99th Cong., 1st Sess. (1985); Minority Enterprise and General Small Business Problems: Hearing before the Subcommittee on SBA and SBIC Authority, Minority Enterprise, and General Small Business Problems of the House Committee on Small Business, 99th Cong., 2d Sess. (1986); Disadvantaged Business Set-Asides in Transportation Construction Projects: Hearings before the Subcommittee on Procurement, Innovation, and Minority Enterprise Development of the House Committee on Small Business, 100th Cong., 2d Sess. (1988); Barriers to Full Minority Participation in Federally Funded Highway Construction Projects: Hearing before a Subcommittee of the House Committee on Government Operations, 100th Cong., 2d Sess. (1988);*264 Surety Bonds and Minority Contractors: Hearing before the Subcommittee on Commerce, Consumer Protection, and Competitiveness of the House Committee on Energy and Commerce, 100th Cong., 2d Sess. (1988); Small Business Problems: Hearings before the House Committee on Small Business, 100th Cong., 1st Sess. (1987). See Brief for Respondents 9-10, n. 9.
Dissenting Opinion
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 Congress in implementing a race-based remedial program, the Fifth and Fourteenth Amendments require the agency to make specific findings of
Although the petition for certiorari added an antecedent 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 respondents acted, I would not have entertained that question in this case. The statutory scheme must be treated as constitutional if Fullilove v. Klutznick,
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 (DBE’s) on the basis of certain race-based presumptions. See generally ante, at 206-208. These statutes (or the originals, of which the current ones are reenactments) have previously been justified as provid
In these circumstances, I agree with Justice Stevens’s conclusion that stare decisis compels the application of Fulli-love. Although Fullilove did not reflect doctrinal consistency, its several opinions produced 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 congressional power under §5 of the Fourteenth Amendment.
The Court today, however, does not reach the application 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.
In assessing the degree to which today’s holding portends 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 observation 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’s broad power under § 5 of the Fourteenth Amendment,” ante, at 222, and explains that there is dis
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 standard 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,
When the extirpation of lingering discriminatory effects is thought to require a catchup 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.”
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
If the statutes are within the § 5 power, they are just as enforceable when the National Government makes a construction contract directly as when it funnels construction money through the States. In any event, as Justice Stevens has noted, see ante, at 247-248, n. 6, 248-249, n. 6, it is
I say “press a challenge” because petitioner’s Memorandum in Support of Summary Judgment did include an argument challenging the reasonableness of the duration of the statutory scheme; but the durational claim was not, so far as I am aware, stated elsewhere, and, in any event, was not the gravamen of the complaint.
Dissenting Opinion
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 compelling 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 253 (Stevens, J., dissenting); see ante, at 254-255.
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 237 (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 239 (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,
“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 (dissenting opinion).
Not until Loving v. Virginia,
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.
The lead opinion uses one term, “strict scrutiny,” to describe the standard of judicial review for all governmental classifications by race. Ante, at 235-237. 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,
For a classification made to hasten the day when “we are just one race,” ante, at 239 (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 237 (quoting Fullilove v. Klutznick,
Close review also is in order for this further reason. As Justice Souter points out, ante, at 270 (dissenting opinion), and as this very case shows, some members of the historically favored race can be hurt by catchup 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.
On congressional authority to enforce the equal protection principle, see, e. g., Heart of Atlanta Motel, Inc. v. United States,
The Court, in 1955 and 1966, refused to rule on the constitutionality of antimiscegenation laws; it twice declined to accept appeals from the decree on which the Virginia Supreme Court of Appeals relied in Loving. See Naim v. Naim,
See, e. g., H. Cross, G. Kennedy, J. Mell, & W. Zimmermann, Employer Hiring Practices: Differential Treatment of Hispanic and Anglo Job Seekers 42 (Urban Institute Report 90-4,1990) (e. g., Anglo applicants sent out by investigators received 52% more job offers than matched Hispanics); M. Turner, M. Fix, & R. Struyk, Opportunities Denied, Opportunities Diminished: Racial Discrimination in Hiring xi (Urban Institute Report 91-9, 1991) (“In one out of five audits, the white applicant was able to advance farther through the hiring process than his black counterpart. In one out of eight audits, the white was offered a job although his equally qualified black partner was not. In contrast, black auditors advanced farther than their white counterparts only 7 percent of the time, and received job offers while their white partners did not in 5 percent of the audits.”).
See, e.g., Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 Harv. L. Rev. 817, 821-822, 819, 828 (1991) (“blacks and women simply cannot buy the same car for the same price as can white men using identical bargaining strategies”; the final offers given white female testers reflected 40 percent higher markups than those given white male testers; final offer markups for black male testers were twice as high, and for black female testers three times as high as for white male testers).
See, e.g., A Common Destiny: Blacks and American Society 50 (G. Jaynes & R. Williams eds. 1989) (“[I]n many metropolitan areas one-quarter to one-half of all [housing] inquiries by blacks are met by clearly
See, e. g., Associated General Contractors v. Coalition for Economic Equity,
Cf. Wygant v. Jackson Bd. of Ed.,
On the differences between laws designed to benefit a historically disfavored group and laws designed to burden such a group, see, e. g., Carter, When Victims Happen To Be Black, 97 Yale L. J. 420, 433-434 (1988) (“[WJhatever the source of racism, to count it the same as racialism, to say that two centuries of struggle for the most basic of civil rights have been mostly about freedom from racial categorization rather than freedom from racial oppression, is to trivialize the lives and deaths of those who have suffered under racism. To pretend ... that the issue presented in Bakke was the same as the issue in Brown is to pretend that history never happened and that the present doesn’t exist.”).
Concurrence Opinion
concurring in part and concurring in the judgment.
I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: In my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co.,
It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand.