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Adarand Constructors v. Pena (93-1841), 515 U.S. 200 (1995).
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No. 93-1841


ADARAND CONSTRUCTORS, INC., PETITIONER v. FEDERICO PENA, SECRETARY OF TRANSPORTATION, et al.

on writ of certiorari to the united states court of appeals for the tenth circuit

[June 12, 1995]

Justice Souter, with whom Justice Ginsburg and Justice Breyer join, dissenting.

As this case worked its way through the federal courts prior to the grant of certiorari that brought it here, petitioner Adarand Constructors, Inc. was understood to have raised only one significant claim: that before a federal agency may exceed the goals adopted by Congress in implementing a race based remedial program, the Fifth and Fourteenth Amendments require the agency to make specific findings of discrimination, as under Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), sufficient to justify surpassing the congressional objective. See 16 F. 3d 1537, 1544 (CA10 1994) ("The gravamen of Adarand's argument is that the CFLHD must make particularized findings of past discrimination to justify its race conscious SCC program under Croson because the precise goals of the challenged SCC program were fashioned and specified by an agency and not by Congress"); Adarand Constructors, Inc. v. Skinner, 790 F. Supp. 240, 242 (Colo. 1992) ("Plaintiff's motion for summary judgment seeks a declaratory judgment and permanent injunction against the DOT, the FHA and the CFLHD until specific findings of discrimination are made by the defendants as allegedly required by City of Richmond v. Croson"); cf. Complaint ¶28, App. 20 (federal regulations violate the Fourteenth and Fifteenth Amendments by requiring "the use of racial and gender preferences in the award of federally financed highway construction contracts, without any findings of past discrimination in the award of such contracts").

Although the petition for certiorari added an antecedent question challenging the use, under the Fifth and Fourteenth Amendments, of any standard below strict scrutiny to judge the constitutionality of the statutes under which the respondents acted, I would not have entertained that question in this case. The statutory scheme must be treated as constitutional if Fullilove v. Klutznick, 448 U.S. 448 (1980), is applied, and petitioners did not identify any of the factual premises on which Fullilove rested as having disappeared since that case was decided.

As the Court's opinion explains in detail, the scheme in question provides financial incentives to general contractors to hire subcontractors who have been certified as disadvantaged business enterprises on the basis of certain race based presumptions. See generally ante, at 3-6. These statutes (or the originals, of which the current ones are reenactments) have previously been justified as providing 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 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 Fullilove 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' conclusion that stare decisis compels the application of Fullilove. 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. [n.1] Fullilove, 448 U. S., at 477-478 (opinion of Burger, C. J.); id., at 503 (Powell, J., concurring); id., at 520-521 (Marshall, J., concurring in judgment). Once Fullilove is applied, as Justice Stevens points out, it follows that the statutes in question here (which are substantially better tailored to the harm being remedied than the statute endorsed in Fullilove, see ante, at 19-25 (Stevens, J., dissenting)) pass muster under Fifth Amendment due process and Fourteenth Amendment equal protection.

The Court today, however, does not reach the application of Fullilove to the facts of this case, and on remand it will be incumbent on the Government and petitioner to address anew the facts upon which statutes like these must be judged on the Government's remedial theory of justification: facts about the current effects of past discrimination, the necessity for a preferential remedy, and the suitability of this particular preferential scheme. Petitioner could, of course, have raised all of these issues under the standard employed by the Fullilove plurality, and without now trying to read the current congressional evidentiary record that may bear on resolving these issues I have to recognize the possibility that proof of changed facts might have rendered Fullilove's conclusion obsolete as judged under the Fullilove plurality's own standard. Be that as it may, it seems fair to ask whether the statutes will meet a different fate from what Fullilove would have decreed. The answer is, quite probably not, though of course there will be some interpretive forks in the road before the significance of strict scrutiny for congressional remedial statutes becomes entirely clear.

The result in Fullilove was controlled by the plurality for whom Chief Justice Burger spoke in announcing the judgment. Although his opinion did not adopt any label for the standard it applied, and although it was later seen as calling for less than strict scrutiny, Metro Broadcasting, Inc. v. 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 (Powell, J., concurring) ("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 35 ("we 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, post, at ___ (O'Connor, J., concurring) (slip op., at 11) ("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' broad power under §5 of the Fourteenth Amendment," ante, at 20, and explains that there is disagreement among today's majority about the extent of the §5 power, ante, at 28-29. There is therefore no reason to treat the opinion as affecting one way or another the views of §5 power, described as "broad," ante, at 20, "unique," Fullilove, supra, at 500 (Powell, J., concurring), and "unlike [that of] any state or political subdivision," Croson, 488 U. S., at 490 (opinion of O'Connor, J.). See also Jenkins, post, at __ (O'Connor, J., concurring) (slip op., at 11) ("Congress . . . enjoys ` "discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment," ' Croson, 488 U. S., at 490 (quoting Katzenbach v. Morgan, 384 U. S., at 651)"). Thus, today's decision should leave §5 exactly where it is as the source of an interest of the national government sufficiently important to satisfy the corresponding requirement of the strict scrutiny test.

Finally, I should say that I do not understand that today's decision will necessarily have any effect on the resolution of an issue that was just as pertinent under Fullilove's unlabeled standard as it is under the standard of strict scrutiny now adopted by the Court. The Court has long accepted the view that constitutional authority to remedy past discrimination is not limited to the power to forbid its continuation, but extends to eliminating those effects that would otherwise persist and skew the operation of public systems even in the absence of current intent to practice any discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) ("Where racial discrimination is concerned, `the [district] court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future,' ") quoting Louisiana v. United States, 380 U.S. 145, 154 (1965). This is so whether the remedial authority is exercised by a court, see ibid.; Green v. School Board of New Kent County, 391 U.S. 430, 437 (1968), the Congress, see Fullilove, 448 U. S., at 502 (Powell, J., concurring), or some other legislature, see Croson, supra, at 491-492 (opinion of O'Connor, J.). Indeed, a majority of the Court today reiterates that there are circumstances in which Government may, consistently with the Constitution, adopt programs aimed at remedying the effects of past invidious discrimination. See, e.g., ante, at __, __ (opinion of O'Connor, J.) (slip op., at 26-27, 35); id., at __ (Stevens, J., with whom Ginsburg, J., joins, dissenting) (slip op., at 2); id., at __, __ (Ginsburg, J., with whom Breyer, J. joins, dissenting) (slip op. at 3, 6); Jenkins, post, at __ (O'Connor, J., concurring) (slip op. at 11) (noting the critical difference "between unconstitutional discrimination and narrowly tailored remedial programs that legislatures may enact to further the compelling governmental interest in redressing the effects of past discrimination").

When the extirpation of lingering discriminatory effects is thought to require a catch up mechanism, like the racially preferential inducement under the statutes considered here, the result may be that some members of the historically favored race are hurt by that remedial mechanism, however innocent they may be of any personal responsibility for any discriminatory conduct. When this price is considered reasonable, it is in part because it is a price to be paid only temporarily; if the justification for the preference is eliminating the effects of a past practice, the assumption is that the effects will themselves recede into the past, becoming attenuated and finally disappearing. Thus, Justice Powell wrote in his concurring opinion in Fullilove that the "temporary nature of this remedy ensures that a race conscious program will not last longer than the discriminatory effects it is designed to eliminate." 448 U. S., at 513; ante, at 37 (opinion of the Court).

Surely the transition from the Fullilove plurality view (in which Justice Powell joined) to today's strict scrutiny (which will presumably be applied as Justice Powell employed it) does not signal a change in the standard by which the burden of a remedial racial preference is to be judged as reasonable or not at any given time. If in the District Court Adarand had chosen to press a challenge to the reasonableness of the burden of these statutes, [n.2] more than a decade after Fullilove had examined such a burden, I doubt that the claim would have fared any differently from the way it will now be treated on remand from this Court.


Notes

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 11, n. 5, 12, n. 6, it is not clear whether the current challenge implicates only Fifth Amendment due process or Fourteenth Amendment equal protection as well.

2 I say "press a challenge," because petitioner's Memorandum in Support of Summary Judgment did include an argument challenging the reasonableness of the duration of the statutory scheme; but the durational claim was not, so far as I am aware, stated elsewhere, and, in any event, was not the gravamen of the complaint.