Discrete and Insular Minorities

Author:Edward J. Erler

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The idea of the "discrete and insular minority" originated in the now famous footnote four of the opinion in UNITED STATES V. CAROLENE PRODUCTS COMPANY (1938). Justice HARLAN F. STONE, writing for only a plurality of the Court, queried?without answering the question?"whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." In the wake of the Court's about-face in 1937, Justice Stone was serving notice that the Court might not accord the same deference to statutes directed at "discrete and insular minorities" that it would to statutes directed at ECONOMIC REGULATION.

The Court made little use of the concept until the early 1970s, when it began to delineate the class characteristics

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of such groups. Included were groups that had been "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." Although race, nationality, and alienage seem to have been firmly established as class characteristics of the "discrete and insular minority," the Court has refused to extend such class status to illegitimates, the poor, or conscientious objectors.

REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE (1978) presented the question of the "discrete and insular minority" in a new light. The question in Bakke was whether the same "solicitude" should be applied to test a governmental action designed to benefit rather than injure a "discrete and insular" minority. The university, citing Carolene Products, argued that STRICT SCRUTINY was reserved exclusively for "discrete and insular minorities." Four Justices agreed that a white male needed no special protection from the political process that authorized the actions of the university. Justice LEWIS F. POWELL rejected this argument: "the "rights created by the ? FOURTEENTH AMENDMENT are, by its terms, guaranteed to the individual. The rights established are personal rights.?' The guarantee of EQUAL PROTECTION cannot mean one thing when applied to one individual and something else when applied to a person of another color."

In FULLILOVE V. KLUTZNICK (1980) the Court, for the first time since...

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