This paper will discuss and critique the decision of the United States Supreme Court in Adarand Constructors v. Pena, where a majority of the Court held that strict scrutiny analysis must be applied to affirmative action programs implemented by the
Federal government. The first part of the paper will briefly examine the history of judicial scrutiny of affirmative action programs. The second part of the paper will summarize the majority and dissenting opinions in Adarand. The third part of the paper will discuss how these opinions fit with previous decisions of the Court in this area.
The Adarand decision marked the acceptance by a bare majority of the Court of a uniformity of analysis under the Equal Protection Clause. Prior to this decision, a majority of the Court had clung to the notion that somehow discrimination intended to benefit historically disadvantaged minorities was preferable to no discrimination whatsoever. This thinking reflected a belief in the primacy of group rights over individual rights. This sort of thinking, however, conflicted with basic principles of the U.S. Constitution. That document was based upon the primacy of individual rights, the idea that everyone should have an equal opportunity to succeed. The former majority in the Court felt otherwise, that equality should be present in results, rather than in opportunity.
As will be seen in this paper, those who have attacked the ruling in Adarand as being a break with past precedent choose to ignore the fact that the previous rulings in this area flew against the spirit of the Constitution. In fact, these rulings did not fit with the established precedent concerning non-federal government affirmative action programs. This difference had been explained as being a proper result of the special powers of the federal government, specifically Congress, in remedying the effects of past discrimination. However, it was never adequately explained h...