SUPREME COURT OF THE UNITED STATES

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 Ginsburg, with whom Justice Breyer joins, dissenting.

For the reasons stated by Justice Souter, and in view of the attention the political branches are currently giving the matter of affirmative action, I see no compelling cause for the intervention the Court has made in this case. I further agree with Justice Stevens that, in this area, large deference is owed by the Judiciary to "Congress' institutional competence and constitutional authority to overcome historic racial subjugation." Ante, at 12–13 (Stevens, J., dissenting); see id., at 14–15. I write separately to underscore not the differences the several opinions in this case display, but the considerable field of agreement—the common understandings and concerns—revealed in opinions that together speak for a majority of the Court.

The statutes and regulations at issue, as the Court indicates, were adopted by the political branches in response to an "unfortunate reality": "[t]he unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country." Ante, at 35 (lead opinion). The United States suffers from those lingering effects because, for most of our Nation's history, the idea that "we are just one race," ante, at 2 (Scalia, J., concurring in part and concurring in judgment), was not embraced. For generations, our lawmakers and judges were unprepared to say that there is in this land no superior race, no race inferior to any other. In Plessy v. Ferguson, 163 U. S. 537 (1896), not only did this Court endorse the oppressive practice of race segregation, but even Justice Harlan, the advocate of a "color-blind" Constitution, stated:

"The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty." Id., at 559 (Harlan, J., dissenting).

Not until Loving v. Virginia, 388 U. S. 1 (1967), which held unconstitutional Virginia's ban on interracial marriages, could one say with security that the Constitution and this Court would abide no measure "designed to maintain White Supremacy." Id., at 11.

The divisions in this difficult case should not obscure the Court's recognition of the persistence of racial inequality and a majority's acknowledgement of Congress' authority to act affirmatively, not only to end discrimination, but also to counteract discrimination's lingering effects. Ante, at 35 (lead opinion); see also ante, at 6 (Souter, J., dissenting). Those effects, reflective of a system of racial caste only recently ended, are evident in our workplaces, markets, and neighborhoods. Job applicants with identical resumes, qualifications, and interview styles still experience different receptions, depending on their race. White and African-American consumers still encounter different deals. People of color looking for housing still face discriminatory treatment by landlords, real estate agents, and mortgage lenders. Minority entrepreneurs sometimes fail to gain contracts though they are the low bidders, and they are sometimes refused work even after winning contracts. Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country's law and practice.

Given this history and its practical consequences, Congress surely can conclude that a carefully designed affirmative action program may help to realize, finally, the "equal protection of the laws" the Fourteenth Amendment has promised since 1868.

The lead opinion uses one term, "strict scrutiny," to describe the standard of judicial review for all governmental classifications by race. Ante, at 34–36. But that opinion's elaboration strongly suggests that the strict standard announced is indeed "fatal" for classifications burdening groups that have suffered discrimination in our society. That seems to me, and, I believe, to the Court, the enduring lesson one should draw from Korematsu v. United States, 323 U. S. 214 (1944); for in that case, scrutiny the Court described as "most rigid," id., at 216, nonetheless yielded a pass for an odious, gravely injurious racial classification. See ante, at 12 (lead opinion). A Korematsu–type classification, as I read the opinions in this case, will never again survive scrutiny: such a classification, history and precedent instruct, properly ranks as prohibited.

For a classification made to hasten the day when "we are just one race," ante, at 2 (Scalia, J., concurring in part and concurring in judgment), however, the lead opinion has dispelled the notion that "strict scrutiny" is "`fatal in fact.'" Ante, at 35 (quoting Fullilove v. Klutznick, 448 U. S. 448, 519 (1980) (Marshall, J., concurring in judgment)). Properly, a majority of the Court calls for review that is searching, in order to ferret out classifications in reality malign, but masquerading as benign. See ante, at 26–28 (lead opinion). The Court's once lax review of sex-based classifications demonstrates the need for such suspicion. See, e.g., Hoyt v. Florida, 368 U. S. 57, 60 (1961) (upholding women's "privilege" of automatic exemption from jury service); Goesaert v. Cleary, 335 U. S. 464 (1948) (upholding Michigan law barring women from employment as bartenders); see also Johnston & Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N. Y. U. L. Rev. 675 (1971). Today's decision thus usefully reiterates that the purpose of strict scrutiny "is precisely to distinguish legitimate from illegitimate uses of race in governmental decisionmaking," ante, at 26 (lead opinion), "to `differentiate between' permissible and impermissible governmental use of race," id., at 27, to distinguish "`between a "No Trespassing" sign and a welcome mat.'" Id., at 28.

Close review also is in order for this further reason. As Justice Souter points out, ante, at 7 (dissenting opinion), and as this very case shows, some members of the historically favored race can be hurt by catch-up mechanisms designed to cope with the lingering effects of entrenched racial subjugation. Court review can ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups. See, e.g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n, 482 F. 2d 1333, 1341 (CA2 1973).

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While I would not disturb the programs challenged in this case, and would leave their improvement to the political branches, I see today's decision as one that allows our precedent to evolve, still to be informed by and responsive to changing conditions.