268
Souter, J., dissenting
FCC, 497 U. S. 547, 564 (1990), none other than Justice Powell joined the plurality opinion as comporting with his own view that a strict scrutiny standard should be applied to all injurious race-based classifications. Fullilove, supra, at 495-496 (concurring opinion) ("Although I would place greater emphasis than The Chief Justice on the need to articulate judicial standards of review in conventional terms, I view his opinion announcing the judgment as substantially in accord with my views"). Chief Justice Burger's noncategorical approach is probably best seen not as more lenient than strict scrutiny but as reflecting his conviction that the treble-tiered scrutiny structure merely embroidered on a single standard of reasonableness whenever an equal protection challenge required a balancing of justification against probable harm. See Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 451 (1985) (Stevens, J., concurring, joined by Burger, C. J.). Indeed, the Court's very recognition today that strict scrutiny can be compatible with the survival of a classification so reviewed demonstrates that our concepts of equal protection enjoy a greater elasticity than the standard categories might suggest. See ante, at 237 ("[W]e wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact.' Fullilove, supra, at 519 (Marshall, J., concurring in judgment)"); see also Missouri v. Jenkins, ante, at 112 (O'Connor, J., concurring) ("But it is not true that strict scrutiny is 'strict in theory, but fatal in fact' ").
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-
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