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Easing the Spring: Strict Scrutiny and Affirmative Action after the Redistricting Cases: 2001 Cutler Lecture

Article excerpt

Strict scrutiny's rationale and its results stand in sharp tension with one another. The reason for skepticism about the government's use of race lies in our historical experience of the enslavement, exclusion, and unfair treatment of African-Americans, Asian-Americans, and Hispanics. But strict scrutiny was the consequence, not the cause, of the Supreme Court's decisions outlawing that discrimination. It wasn't until 1964, in McLaughlin v. Florida, (1) that the Court "both articulated and applied a more rigorous review standard to racial classifications." (2) By then, the Court had essentially finished the job of eradicating explicit racial classifications, and rational basis review had proven adequate for the task. For example, in Anderson v. Martin, (3) decided the same Term as McLaughlin, the Court unanimously struck down a Louisiana law requiring that a candidate's race be indicated on the ballot. In the context of early 1960s Louisiana, (4) the law's most foreseeable effect was to furnish "a vehicle by which racial prejudice may be so aroused as to operate against one group because of race and for another," (5) that is, to reinforce racial bloc voting. In light of its conclusions about the law's racially discriminatory impact--and its suspicions about the legislature's discriminatory purpose (6)--the Court saw no way in which the provision was "reasonably designed to meet legitimate governmental interests in informing the electorate as to candidates." (7)

As for the results of strict scrutiny, its late arrival has had an ironic consequence. Strict scrutiny has been rather useless to the groups whose mistreatment prompted its adoption.

On the one hand, strict scrutiny is generally superfluous to the kind of equal protection case minorities have brought in the strict scrutiny era. These cases usually involve challenges to facially neutral laws. In such cases, to trigger strict scrutiny, plaintiffs must first prove that the government "selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." (8) But "if the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate," let alone a compelling, "governmental interest." (9) Thus, proof of an invidious motive by itself strips a law of its presumptive legitimacy. As a formal matter, once the plaintiff has shown a discriminatory purpose, the burden shifts to the defendants to prove that the law would have been enacted even without that purpose. (10) As a practical matter, though, proof of an invidious intent to injure blacks or Hispanics is the ballgame. (11) Few courts, having found that sort of malevolence, are likely to uphold a law anyway. (12)

On the other hand, strict scrutiny has proved invaluable in the assault on race-conscious affirmative action. That is certainly where the Court usually deploys it. (13) Of course, it can be hard to separate a justice's view on the appropriate standard of review from her view on the underlying merits: Is skepticism about affirmative action the cause or the consequence of applying strict scrutiny to all racial classifications? Still, it seems pretty clear that the level of scrutiny the Court applies to race-conscious affirmative action is closely correlated with the outcome it reaches. It is not simply coincidence that the Court upheld the affirmative action programs in Metro Broadcasting (14) and Fullilove, (15) where it applied a more lenient test that asked whether the challenged measures were substantially related to the achievement of an important government objective, but that it expressed serious doubts about the set-aside program at issue in Adarand Constructors, Inc. v. Pena, (16) where it squarely held that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. …