266
Souter, J., dissenting
ing remedies for the continuing effects of past discrimination, see, e. g., Fullilove, supra, at 465-466 (citing legislative history describing SBA § 8(a) as remedial); S. Rep. No. 100-4, p. 11 (1987) (Committee Report stating that the DBE provision of STURAA was "necessary to remedy the discrimination faced by socially and economically disadvantaged persons"), and the Government has so defended them in this case, Brief for Respondents 33. Since petitioner has not claimed the obsolescence of any particular fact on which the Fullilove Court upheld the statute, no issue has come up to us that might be resolved in a way that would render Fulli-love inapposite. See, e. g., 16 F. 3d, at 1544 ("Adarand has stipulated that section 502 of the Small Business Act . . . satisfies the evidentiary requirements of Fullilove"); Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment in No. 90-C-1413 (D. Colo.), p. 12 (Fullilove is not applicable to the case at bar because "[f]irst and foremost, Fullilove stands for only one proposition relevant here: the ability of the U. S. Congress, under certain limited circumstances, to adopt a race-base[d] remedy").
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.1 Fullilove, 448 U. S., at 477-478 (opinion of Burger,
1 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. 5, 248-249, n. 6, it is
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