Reconnecting doctrine and purpose: a comprehensive approach to strict scrutiny after Adarand and Shaw.

JurisdictionUnited States
AuthorRubin, Peter J.
Date01 November 2000

Strict scrutiny has become something of a talisman.(1) While some commentators score debating points by identifying those rare cases in which governmental actions have survived it,(2) most have concluded that a judicial determination to apply "strict scrutiny" is little more than a way to describe the conclusion that a particular governmental action is invalid: Professor Gunther's "`strict' in theory and fatal in fact" formulation(3) must rank with Justice Stewart's subjective test for obscenity(4) as one of the most famous epithets in American constitutional law.

In the courts, strict scrutiny is essentially invoked, not employed. Despite its name--strict "scrutiny"--it ordinarily amounts to a finding of invalidity, not a tool of analysis. Moreover, discussion about the propriety of invoking strict scrutiny is typically divorced from any concern about the purposes that close judicial examination of a constitutionally troublesome statute or regulation might actually serve. The application of strict scrutiny thus threatens a cookie-cutter approach to questions of constitutional dimension. While this is, at the present moment, of most obvious importance in relation to the constitutional status of race-based plans of affirmative action, its significance goes well beyond that.

The goal of this Article is to suggest a comprehensive solution to the problem of the nature of strict scrutiny. The Article will set forth a conceptual framework for analysis of governmental actions that raise concerns of constitutional moment. This framework is designed to preserve the multidimensionality of the problems such governmental actions present. Although it will refer frequently to judicial evaluation of governmental action, my hope is that the tools it describes will be as useful ex ante to legislators and officials of the executive branch who may be considering certain actions as to courts called upon to review them in the face of subsequent legal challenges.

This Article will synthesize some extraordinarily important but fragmentary insights various people--including, perhaps most significantly, John Hart Ely--have had about what strict scrutiny is for and how it should be applied. Because these insights have, indeed, been fragmentary (even when offering themselves as breathtakingly global), they require supplementation and integration. The examples in the Article will come primarily from the various settings in which the government may seek to take race-conscious action, but it will also make use of examples beyond race to show what is involved, drawing extensively on the Court's own jurisprudence to demonstrate the explanatory power of the ideas put forth. And, although it will be most immediately concerned with strict scrutiny in the context of race, many of the insights and conclusions included in it should have salience beyond that context.

This Article will also use a detailed evaluation of the case of race-conscious districting to demonstrate the appropriate application of the framework it sets forth. At the same time it will address some of the harder theoretical problems lurking beneath the Court's analysis in its recent series of voting rights cases. In the end, this Article concludes that, even when formally strict, judicial scrutiny under the Equal Protection Clause must be ever sensitive to the circumstances in which government seeks to act and to the methods by which it seeks to achieve even its legitimate ends. If it fails to do so, "strict scrutiny" may become little more than a Procrustean bed, rigidly invalidating certain government actions regardless of the consequences for the very equality that is the animating principle behind the Equal Protection Clause.


I have chosen to focus on race and equal protection in this Article because, at present, the question of the nature of strict scrutiny is especially important in that context. With the announcement in Adarand Constructors, Inc. v. Pena that all racial classifications by government including those used in plans of affirmative action henceforth will be subject to strict scrutiny,(5) the most important question involving race and the Constitution now facing the Supreme Court is what that strict scrutiny will look like.

Applying the test articulated in Adarand and its precursor, City of Richmond v. J.A. Croson Co.,(6) lower courts recently have invalidated several affirmative action plans. Most notably, the United States Court of Appeals for the Fifth Circuit held in Hopwood v. Texas that race may never be taken account of in admissions to state institutions of higher learning for the purpose of fostering diversity.(7) This holding essentially concluded that the portion of Justice Powell's controlling opinion in Regents of the University of California v. Bakke that had for a generation delineated the permissible scope of affirmative action in state-run higher education did not state the law. Rather, the Fifth Circuit found that Croson and Adarand had adopted a stricter standard under which the use by the state of Texas of race for purposes of affirmative action in university admissions could not be constitutionally justified.(8) The Fourth Circuit has held that, under Croson, the Constitution does not permit a state to create merit-based college scholarships for which only African Americans are eligible.(9) And, most recently, the First Circuit has held that, although it may be designed to ensure diversity in the student body, the affirmative action plan of the Boston Latin School likewise fails strict scrutiny because its use of race cannot be justified.(10)

Although the Adarand Court insisted that the strict scrutiny it requires is not to be "strict in theory, but fatal in fact,"(11) the Court has let those of these decisions that have come before it stand. With the Courts of Appeals each likely to face the question whether affirmative action, particularly affirmative action in higher education, is constitutionally permissible--a question that was long thought to have been answered in the affirmative by the Supreme Court in Bakke--the Supreme Court will eventually have to face the hard question head on: In application, what form will the strict scrutiny called for by Adarand and Croson take?

There is reason for concern about the Court's ability to provide an adequate answer to this question. The Court has had a particularly difficult time answering the parallel question--what should the nature of strict scrutiny be?--in the related context of race-conscious electoral districting. In a spate of decisions beginning with Shaw v. Reno (Shaw or Shaw I),(12) the same five-Justice majority that decided Adarand has held over the last several years that strict scrutiny must be the norm in at least most cases where the government consciously uses race in drawing electoral district lines.(13) Although the controlling opinions of the Court always suggest that there are circumstances in which the intentional use of race in electoral districting may be justified--for example, where it is necessary to prevent discriminatory "dilution" of the votes of members of a racial minority group--in practice, the Court since Shaw I has invalidated every district line drawn on the basis of race brought before it in a fully briefed and argued case.(14) This has been true even though the districts at issue have been drawn precisely to comply with the antidiscrimination command contained in the Voting Rights Act of 1965 ("V.R.A." or the "Act").(15) The Supreme Court has thus not only held that the intentional creation of majority-black electoral districts is presumptively unconstitutional--that is the reason such districts must be subjected to strict scrutiny--it has at least laid the groundwork for an argument that the practical effect of judicial scrutiny of such districts will always be the invalidation of the government's use of race, regardless of the justifications that support it.

On the other side, those members of the Court who disagree with Shaw have offered no approach that would preserve the V.R.A. while at the same time proving satisfactory to a Court majority that is overwhelmingly concerned with the use by government of racial classifications. Beginning with Justice Stevens's dissent in Shaw I, and in all the succeeding dissents in the Shaw line of cases, no constitutional alternative has been proposed except to permit the use of race in districting, subject only to rational basis review, unless and until it reaches the point of diluting the votes of the members of one or another racial group, that is, so submerging their votes among those of a hostile majority that they are denied the opportunity to participate equally in the process of electoral politics. But in an age in which a majority of the Supreme Court is inherently skeptical of the use of race by government--where, indeed, the Court purports virtually always to "strictly" scrutinize race-based governmental action--rational basis scrutiny is neither an adequate nor a realistic alternative.

A solution to the problem of strict scrutiny is thus needed both urgently and for the long haul. With respect to voting rights, the new decennial census, which will be accompanied by redistricting, is already underway. The Court has recently granted review to consider for a third time the congressional district lines drawn in North Carolina under the 1990 census in order to comply with the V.R.A.(16) This will provide it a final opportunity to clarify the meaning of Shaw, and its relationship to the V.R.A., before the flood of lawsuits that redistricting in light of the 2000 census will inevitably generate. Without some rethinking, the continued vitality of Shaw may well result in the evisceration of the V.R.A., a landmark civil rights statute. Yet that provision has proven an extraordinarily successful tool for breaking down the patterns of racially polarized voting that have historically led to...

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