Adarand Constructors, Inc. v. Pe–a, 515 U.S. 200, 20 (1995)

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Cite as: 515 U. S. 200 (1995)

Opinion of the Court

quist, JJ., concurring in judgment in part and dissenting in part).

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, 448 U. S. 448 (1980), the Court upheld Congress' inclusion of a 10% set-aside for minority-owned businesses in the Public Works Employment Act of 1977. As in Bakke, there was no opinion for the Court. Chief Justice Burger, in an opinion joined by Justices White and Powell, observed that "[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees." 448 U. S., at 491. That opinion, however, "d[id] not adopt, either expressly or implicitly, the formulas of analysis articulated in such cases as [Bakke]." Id., at 492. It employed instead a two-part test which asked, first, "whether the objectives of th[e] legislation are within the power of Congress," and second, "whether the limited use of racial and ethnic criteria, in the context presented, is a constitutionally permissible means for achieving the congressional objectives." Id., at 473. It then upheld the program under that test, adding at the end of the opinion that the program also "would survive judicial review under either 'test' articulated in the several Bakke opinions." Id., at 492. Justice Powell wrote separately to express his view that the plurality opinion had essentially applied "strict scrutiny" as described in his Bakke opinion—i. e., it had determined that the set-aside was "a necessary means of advancing a compelling governmental interest"—and had done so correctly. 448 U. S., at 496 (concurring opinion). Justice Stewart ( joined by then-Justice Rehnquist) dissented, arguing that the Constitution required the Federal Government to meet the same strict standard as the States when enacting racial classifications, id., at 523, and n. 1, and that the program before the Court failed that standard. Justice Stevens also dis-

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