Cite as: 515 U. S. 200 (1995)
Stevens, J., dissenting
II
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, 426 U. S. 88, 100 (1976), should ignore this distinction.1
1 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) ("[T]ime 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
243
Page: Index Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 NextLast modified: October 4, 2007