The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies

By Girardeau A. Spann | Go to book overview

3
The Majority Opinions

In 1989, after President Reagan's appointment of Justices O'Connor, Scalia, and Kennedy to the Supreme Court and his elevation of Justice Rehnquist to the position of chief justice,1 the Court was able to issue its first majority opinion in a constitutional affirmative action case. The decision, rendered in City of Richmond v. J.A. Croson Co.,2 invalidated a Fullilove-type minority set-aside program that had been adopted by the Richmond City Council. Justices Kennedy, White, and Stevens joined with the conservative group comprised of Justices Rehnquist, O'Connor, and Scalia to invalidate the plan 6–3.3 Although several opinions were issued in the case, portions of Justice O'Connor's opinion attracted a five-justice majority.4 The following year, in 1990, the Court again issued a majority opinion in an affirmative action case. In Metro Broadcasting v. FCC,5 the Court upheld two broadcast licensing programs adopted by the FCC that were intended to give certain preferences to minorities in obtaining radio and television broadcast licenses. This time, Justices White and Stevens joined with the liberal group consisting of Justices Brennan, Marshall, and Blackmun in issuing a majority opinion that upheld the programs 5–4.6Metro Broadcastingwas the last major decision in which the Supreme Court upheld the constitutionality of a racial affirmative action plan.7 The Court's subsequent decision in Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville8 facilitated challenges to affirmative action programs, and the Court's decision in Adarand Constructors v. Pena9 then overruled Metro Broadcasting.10Adarand was followed by a series of constitutional decisions concerning the Voting Rights Act of 1965 and a series of actions on petitions for certiorari that were systematically adverse to the affirmative action plans at issue.11

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