Adarand Constructors, Inc. v. Pe–a, 515 U.S. 200, 57 (1995)

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256

ADARAND CONSTRUCTORS, INC. v. PENA

Stevens, J., dissenting

were more important than our actual holdings. In my opinion that treatment is incorrect.

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, 448 U. S. 448, and the second in 1990, Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, the Court upheld the program. Today the Court explicitly overrules Metro Broadcasting (at least in part), ante, at 227, and undermines Fullilove by recasting the standard on which it rested and by calling even its holding into question, ante, at 235. By way of explanation, Justice O'Connor advises the federal agencies and private parties that have made countless decisions in reliance on those cases that "we do not depart from the fabric of the law; we restore it." Ante, at 234. A skeptical observer might ask whether this pronouncement is a faithful application of the doctrine of stare decisis.12 A brief comment on each of the two ailing cases may provide the answer.

In the Court's view, our decision in Metro Broadcasting was inconsistent with the rule announced in Richmond v. J. A. Croson Co., 488 U. S. 469 (1989). Ante, at 225-226. But two decisive distinctions separate those two cases. First, Metro Broadcasting involved a federal program, whereas Croson involved a city ordinance. Metro Broadcasting thus drew primary support from Fullilove, which predated Croson and which Croson distinguished on the grounds of the federal-state dichotomy that the majority today discredits. Although Members of today's majority trumpeted the importance of that distinction in Croson, they now reject it in the name of "congruence." It is therefore

12 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.

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