Comment by Gerald S. Janoff
On June 14, 1995, the Supreme Court announced its decision in Adarand Constructors, Inc. v. Pena, in which it explained the current status of the law with regards to affirmative action. Predictable changes in the law, which appear to be strongly significant, were announced; however, questions as to their actual effect remain. This Comment compares predictions which this author made in the March, 1995 issue of the Tulane Law Review to the June, 1995 decision of the Supreme Court.
The term “affirmative action” has a variety of connotations. A broad definition of affirmative action encompasses any positive steps taken to improve the status of disadvantaged persons. In its more narrow sense, affirmative action includes programs which redress past wrongful discrimination and its present effects through the allocation of opportunities on the basis of racial or gender characteristics. In examining affirmative action programs, this Comment will refer to legislation or judicial decrees that create group remedies by considering characteristics of disadvantage.
During the past quarter-century, the constitutionality of affirmative action remedies has been consistently litigated. Yet, the state of the law remains unclear. The threshold issue in determining the constitutionality of affirmative action programs is whether strict or intermediate scrutiny applies to such schemes. In equal protection jurisprudence, there are three tiers of scrutiny: rational basis, intermediate, and strict scrutiny. When the court applies the rational basis test, the statute will generally be upheld unless there is no rational relationship between the means used and a legitimate legislative objective. When intermediate scrutiny is applied, the court determines whether the law at issue has a substantial relationship to an important governmental interest. Finally, under the strict scrutiny test, the court examines the disputed provision to determine whether it is narrowly tailored to achieve a compelling governmental interest. The primary question in Adarand is whether intermediate or strict scrutiny should be applied to an affirmative action program created by the federal government.
In my comment in the March, 1995 issue of the Tulane Law Review, the aim was to predict how each justice of the Supreme Court would evaluate the affirmative action program at issue in Adarand. The information upon which the predictions were based varied from justice to justice. Some justices, such as Justices O'Connor and Scalia, had written extensively on affirmative action. Other justices, such as Justices Breyer and Thomas, had decided affirmative action cases when they held other judicial positions or had written on this topic. With respect to the prediction of the decisions of Justices Ginsburg and Souter, little information from which a prediction could be made was available.
About the Author
Gerald S. Janoff.
Citation
69 Tul. L. Rev. 1689 (1995)