Constitutional colorblindness and the family.

• Author: Eyer, Katie
• Position: III. Palmore to Adarand: 1985-1995 through Conclusion, with footnotes, p. 572-603

3. PALMORE TO ADARAND: 1985-1995

   The next ten years--from 1985 to 1995--would mark a turning point in both affirmative action case law and race family law in the United States. In the affirmative action context, the Court's constitutional standards for reviewing affirmative action--still arguably hospitable to the race liberals' preferred intermediate scrutiny standard at the time that Palmore was decided--would turn first tentatively, and then decisively, toward strict scrutiny review. (171) Thus, in 1986 the Court would issue a decision in which four of the Justices publicly called for strict scrutiny review (a view that many of the still-serving race conservatives had privately expressed as early as Bakke), with a fifth declining to publicly endorse a standard. (172) And by mid-1989, the Court had decisively held that all state and local government uses of race must be subjected to strict scrutiny; a holding extended, after initial equivocation, to the federal government in 1995. (173) Thus the decade between 1985 and 1995 marked a dramatic change in the Court's affirmative action precedents, away from the fractured opinions that characterized the late 1970s and early 1980s (opinions at least partially favorable to the position of the Court's race liberals) to a solid majority in favor of applying the most stringent standard of constitutional review even to "benign" uses of race.

   This turn--perceived at the time as a major upheaval in the Court's race law jurisprudence (174)--was justified by the Court primarily through two core rhetorical arguments. First, while continuing to facially recognize that certain racial classifications might be justified by compelling circumstances, by the mid-1990s the Court spoke far more often in terms of the inherent harms of government uses of race. (175) Thus, the majority decisions for the Court during this time period began to refer to all racial classifications--including those intended to benefit racial minorities--in broadly negative terms, characterizing such classifications as "pernicious," "odious," and "stigmatiz[ing]." (176) While continuing to pay lip service to the notion that strict scrutiny was intended to "smoke out" invidious uses of race, the Court in fact turned toward an understanding in which government uses of race may be justified by compelling objectives, but are always fundamentally non-benign. (177) This rhetorical turn, which would take on an even more strident form in some of the later opinions authored by the Court's race conservatives, provided the Court with its fundamental normative justification for treating affirmative action as constitutionally akin to invidious uses of race. (178)

   The Court buttressed these normative claims of inherent invidiousness with related claims of "consistency" (i.e., claims that the Court must treat all racial classifications the same). (179) "[A]ll racial classifications," the Court increasingly claimed, "must be strictly scrutinized" by the courts. (180) In other words, racial classifications of any kind "are constitutional only if they are narrowly tailored measures that further compelling governmental interests." (181) Thus, in the late 1980s and 1990s, the Court turned away from the notion of contextual variability toward a claim of global consistency, requiring the most stringent form of scrutiny for all government uses of race. (182) And although this rhetorical theme emerged primarily as a normative explanation for why the claims of white plaintiffs should be treated the same as the claims of racial minorities, it would ultimately evolve into a broad descriptive claim and doctrinal mandate to which the Court itself would claim adherence. (183)

   Both of these core justifications for the Court's increasingly stringent review of affirmative action programs--inherent invidiousness and cross-contextual consistency--arguably should have had profound implications for the use of race in family law. For although, in the aftermath of Palmore, the lower courts did largely cease to award custody modifications based on interracial marriages; (184) they typically construed Palmore as having relatively little importance for other ongoing uses of race. (185)

   As a result, Palmore did not eradicate the continuing use of race in adoption and foster care, nor in custody disputes between interracial parents. Instead, the continued use of race in those contexts was largely deemed acceptable by the courts, except where the facts evidenced an exclusive reliance on racial criteria (a limitation with which only the most unsophisticated government actor would be unable to demonstrate compliance). Indeed, courts addressing post-Palmore, race-based family law practices typically found them to be categorically constitutional (i.e., requiring no constitutional scrutiny of any kind) where race was not the exclusive factor considered as part of the best interest of the child assessment.

   This approach, while perhaps consistent with a narrow reading of Palmore, was in obvious tension with the Court's post-Palmore affirmative action doctrine. (186) Both of the Court's key justifications for its new affirmative action doctrine--the inherent invidiousness of all uses of race and the need for consistency across all race-based decisionmaking contexts--facially demanded the application of strict scrutiny to all government uses of race, (187) even where race was not the exclusive consideration. (188) And indeed, many of the race-based family law decisions that courts confronted during this time gave, either formally or de facto, at least as much weight to racial considerations as the affirmative action policies that the Court had found to require strict scrutiny (with predictable results for their constitutional validity). (189)

   Thus, the Court's affirmative action precedents during this time frame should have profoundly unsettled the lower courts' approach to the remaining instantiations of race in family law (adoption, foster care, and interracial parent custody disputes). But while 1985 to 1995 was a time of considerable change for race in family law doctrine (like affirmative action), this change was not in the direction one would expect. Between 1985 and 1995, rather than moving toward a consensus against the use of race in family law, the lower courts increasingly expressed a consensus that remaining uses of race in the family were constitutionally permissible. (190) And while the courts were never completely unified, either in outcome or in approach, by the 1990s, most courts were expressing the view that only de minimis (if any) constitutional scrutiny was demanded of race-based family law practices, at least where race was not the exclusive consideration. (191) As such, the decade between 1985 and 1995--unlike the preceding decade--was marked by increasing consistency in both the outcome and the reasoning of the courts' approaches to government uses of race in the family; but in ways that diverged profoundly from both the framework adopted (strict scrutiny) and the usual results (invalidation) in the affirmative action context during the same time frame.

   Five of the disputes arising during this time frame--all involving race-based adoption or foster care determinations--prompted the litigants involved to seek Supreme Court intervention in these continuing race-based family law practices. First in 1988 and then again in 1989, 1990, 1992, and 1994, disappointed would-be parents petitioned the Court to address state policies and practices that had resulted in the removal of African American or biracial children from their homes. (192) Arguing that the courts below had carved out an exception for state-sponsored "segregation" in the family, the litigants in each case contended that the lower courts had lost touch with the Court's broader race law jurisprudence. (193) Often drawing explicitly on the Court's affirmative action precedents, they called upon the Court to remedy the lower courts' aberrational approach and to strike down the continuing use of race in the adoption and foster care contexts. (194)

   But the Court showed no more interest in taking up the issues of adoption or foster care during the 1985 to 1995 time frame than it had at the time that Palmore was decided. While the record of the Justices' personal views of the cases that came up to the Court during this time is sparse, none of the five cases appears to have been perceived as a serious candidate for review. Indeed, in most of the cases for which internal Court records are available, those records suggest that the case at issue never even made it to the Justices' so-called "discuss list," signifying that not a single Justice thought discussion of the case was warranted as a potential matter for the Court to take up. (195) And while several of the cases arguably had procedural complications that made them unappealing candidates for certiorari, at least one was, in the words of Justice Blackmun's law clerk, "extraordinary," involving a lower court decision that had denied the plaintiffs the opportunity to demonstrate that even the sole use of race to deny a foster care placement violated their clearly established constitutional rights. (196) Nevertheless, even this "extraordinary" case appears not to have attracted any serious attention, and ultimately each of the cases would be denied certiorari review.

4. ADARAND TO GAMBLA: 1996-2007

   While the Court thus declined during the post-Palmore period to become involved in the ongoing constitutional disputes over the propriety of the use of race in adoption and foster care, statutory changes in the mid-1990s would ultimately limit the practical significance of this inaction. In 1994, Congress enacted (and shortly thereafter amended) the Howard M. Metzenbaum Multiethnic Placement Act of 1994 (MEPA). (197) In its final form (adopted in 1996), MEPA precluded the use of race as a basis for "delay[ing]" or "denying]"...