The Supreme Court’s decision in Adarand will lead to the invalidation of many federal programs because the decision requires strict scrutiny for all affirmative action programs, including federal programs. The Court ignores both constitutional strictures and American history by resorting to Lochner era rulings of striking down federal socio-economic regulations. Overturning the clear precedent of Fullilove undermines stare decisis by valuing the language of the Court’s decision over its meaning. The Court in Adarand presumes that the Constitution is color-blind. This presumption ignores the history leading up to the Reconstruction Amendments, the purpose of the Reconstruction Amendments, and the intentions of the Framers of the Reconstruction Amendments. The conservative Court in Lochner promoted individual liberty at the expense of social equality in a similar fashion to the conservative Court in Adarand. Thus, the lochnerization of affirmative action challenges the original purpose of the Fourteenth Amendment—to aid minorities—when it requires strict scrutiny analysis for affirmative action programs like the Court in Lochner required strict scrutiny analysis for economic substantive due process questions. By challenging the original meaning of the Fourteenth Amendment, the Adarand Court uses strict scrutiny as a tool to enforce the conservative values of the Justices. Forcing strict scrutiny analysis is counterintuitive to the underlying purpose of strict scrutiny review—suspiciously examining rules which impinge on groups historically treated with hostility. Government agencies design affirmative action programs to aid minority groups in a variety of settings, so the Court’s decision will lead to a detrimental effect on these minority groups.
St. Mary's University School of Law
Patricia A. Carlson,
Adarand Constructors, Inc. v. Pena: The Lochnerization of Affirmative Action Recent Development.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol27/iss2/5
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