Phantom of the Strict Scrutiny^*

G. Jan Pillai^**

Introduction

As a matter of historical and practical necessity, the daunting tasks of ending racial and gender discrimination, and maintaining racial and ethnic tranquility, are assigned by the Constitution to the political branches of the national government. That fact is self-evident in the explicit textual commands of the Civil War Amendments⁽¹⁾--the only constitutional provisions that refer directly to the topic. The Amendments confide to Congress--and only to Congress--the power and the obligation to enforce by appropriate legislation the prohibitions against State deprivations of citizens' rights to racial justice and for fair and equal treatment under the law.⁽²⁾ Whatever enforcement role that the drafters of the Amendments envisioned for the judiciary was no more than secondary to the role of Congress.⁽³⁾

However, through a spate of recent decisions interpreting the Fourteenth Amendment, the United States Supreme Court has effectively assumed the primary governmental responsibility to secure racial and economic equality in America. First, the Court put a stranglehold on the power of state and local governments to take race-based remedial action to alleviate racial discrimination within their political boundaries. In its 1989 decision in City of Richmond v. J. A. Croson Co.,⁽⁴⁾ the Court, by a thin majority, applied the strict scrutiny standard to nullify a city set-aside program that was designed to provide contracting opportunities to minority-owned businesses. The crippling standard of review accorded no significance to the political decision of the elected representatives of the City of Richmond--a city characterized as the "cradle of the Old Confederacy"⁽⁵⁾--that remedial action was necessary to combat long-standing racial discrimination in public contracting. Second, the Court handed down a series of decisions invalidating race-based voter redistricting plans adopted by State Legislatures. In 1993, the Court in Shaw v. Reno⁽⁶⁾ struck down North Carolina's redistricting plan, which included two majority-black congressional districts, as violative of the equal protection clause. The plan, approved both by the State Legislature and the United States Department of Justice, was designed to send black representatives to Congress "for the first time since Reconstruction"⁽⁷⁾ from a state in which blacks constituted over twenty percent of the voting age population. The state's belated recognition of the compelling need to remedy the lack of black participation in the democratic process was not weighty enough to surmount the Court's mechanical review under strict scrutiny. The Court's five-member majority marched ahead to invalidate similar race-based redistricting plans in three subsequent cases.⁽⁸⁾

Even though Croson, Reno and their progeny had the potential to interfere with future enforcement actions of Congress,⁽⁹⁾ those cases did not directly implicate any federal enforcement legislation. Indeed, the Court in Croson seemed to reassure all concerned that its strict scrutiny pronouncements would have little or no effect on congressionally-fashioned affirmative action programs.⁽¹⁰⁾ Nevertheless, in 1996, the Court, without any compunction, finally applied the same strict scrutiny to strike at a congressionally-mandated affirmative action program that gave a financial incentive to federal contractors who hired small subcontractors "owned and controlled by socially and economically disadvantaged individuals."⁽¹¹⁾ The relevant federal statute authorized the United States Small Business Administration, the agency responsible for implementing the program, to presume without additional proof that members of certain racial and ethnic minorities are "socially . . . disadvantaged."⁽¹²⁾ The Court, in a five to four decision in Adarand Constructors, Inc. v. Pena,⁽¹³⁾ held that the race-conscious subcontracting program violated the equal protection principles as applied to the federal government by the Due Process Clause of the Fifth Amendment. The Court insisted that "all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny" to make sure that they are "narrowly tailored" to "further compelling governmental interests."⁽¹⁴⁾ Any distinction drawn between state and federal classifications, according to the Court, is "untenable" and is bound to undermine "the fundamental principle of equal protection as a personal right."⁽¹⁵⁾

Adarand was the last straw that threatened to break the camel's back. It amounts to a frontal assault on Congress' enforcement power under the Fourteenth Amendment. The decision severely restricts congressional discretion in making critical decisions as to the states' conduct or societal conditions that warrant enforcement action, as well as the appropriateness of selecting race-conscious remedial means of enforcement--the types of enforcement discretion the federal courts freely enjoy when they fashion remedies in race or employment discrimination cases.⁽¹⁶⁾ It smacks of judicial arrogance not to concede to Congress at least equal Fourteenth Amendment enforcement discretion to that exercised by a United States district court judge.⁽¹⁷⁾ In fact, by obliterating the difference between state and federal racial classification for purposes of strict scrutiny, the Adarand Court downgrades the role of Congress under the Fourteenth Amendment from an enforcer to a complier.

The Trojan horse of the Supreme Court's jurisprudential expedition into the federal terrain is the court-made standard of strict scrutiny. A majority of the sitting Justices espouse the standard with fanatic fervor and present it as a fool-proof device that is indispensable to safeguard fundamental constitutional values. Strict scrutiny, however, is an indeterminate standard, devoid of empirically ascertainable contents, and easily susceptible to judicial spinning in order to arrive at preordained outcomes. This Article endeavors to analyze the major postulates of strict scrutiny and to show that it is the most inappropriate standard to gauge the constitutionality of federal race-conscious legislation.

Part II of this Article traces the erratic evolution of the Supreme Court's jurisprudence of strict scrutiny and the periodic expression of sentiments by the Justices to replace it with a less rigorous and reasonably manageable standard of review.⁽¹⁸⁾ Part III analyzes the compelling interest component of strict scrutiny to show that the standard is indeterminate and ambiguous for the judiciary to apply and for the non-judicial actors to comply with.⁽¹⁹⁾ Part IV attempts to demonstrate that the application of strict scrutiny to federal legislation will jeopardize the enforcement powers of Congress and that there is no constitutional basis for the imposition of the standard's requirements on congressional legislation.⁽²⁰⁾ Finally, Part V makes the case for preserving the enforcement discretion of Congress and for reclaiming the legislative branch's co-ordinate power to interpret and enforce the Fourteenth Amendment as the framers of the Constitution originally contemplated.⁽²¹⁾

In Search for a Formula for Equal Protection Review

The application of the standard of strict scrutiny to federal legislation will inevitably undermine congressional autonomy in making enforcement decisions under the Fourteenth Amendment. Strict scrutiny has always been a carefully contrived formula for judicial intervention in legislative decision making. In terms of the severity of equal protection review, strict scrutiny stands at the other end of the spectrum from "minimum" or "rational" scrutiny, which is most deferential to legislative classifications.⁽²²⁾ More than two decades ago, Professor Gerald Gunther aptly characterized strict scrutiny as "`strict' in theory and fatal in fact," and minimal scrutiny as "minimal . . . in theory and virtually none in fact."⁽²³⁾ The subsequent evolution of strict scrutiny confirmed the accuracy of the Gunther assessment. If strict scrutiny is so menacing, the very idea of the Supreme Court using it to review legislation enacted by Congress pursuant to its Section five enforcement powers would sound presumptuous. But, as we already noted, the Court has emphatically declared its intention to review under strict scrutiny all federal statutes that involve suspect classifications.⁽²⁴⁾

A.  The Seed of Strict Scrutiny

Strict scrutiny has been part of the vocabulary of the Supreme Court's equal protection jurisprudence since 1938, the year in which Justice Stone inserted the landmark "footnote four" in his Carolene Products⁽²⁵⁾ opinion. Footnote four was just a cautionary addendum to a non-interventionist policy or standard of judicial review that was being announced in the Carolene Products opinion. Under that standard, the Court would accord a presumption of constitutionality to "regulatory legislation affecting ordinary commercial transactions," and thus would refrain from invalidating it, if the legislation "rests upon some rational basis within the knowledge and experience of legislators."⁽²⁶⁾ But footnote four intimated that the Court's review may not be that lenient if the legislation: (1) implicates constitutional prohibitions such as those specified in the first ten amendments and "embraced within the Fourteenth"; (2) restricts access to the political processes; or (3) is directed at or prejudicial to "discrete or insular minorities"--religious, national or racial.⁽²⁷⁾ In these three situations, the Court stated that "[t]here may be narrower scope for operation of the presumption of constitutionality" and even went so far to say that the legislation may be subject to "more searching judicial inquiry" or "more exacting judicial scrutiny" as well.⁽²⁸⁾

If understood in the proper context, the exacting judicial scrutiny contemplated by Justice Stone bears no resemblance to the strict scrutiny concept of the Rehnquist Court. First, footnote four did not attach any presumption of unconstitutionality to the three types of legislation. As Justice Frankfurter observed in a later case, the footnote "merely stirred inquiry whether as to such [legislation] there may be `narrower scope . . . of the presumption'. . . . and . . . therefore `to be subjected to more exacting judicial scrutiny.'"⁽²⁹⁾ Second, if the footnote ever insinuated any degree of judicial activism, it was strictly "tied . . . to redress of the failures of the majoritarian electoral process and to prejudice against defenseless minorities."⁽³⁰⁾

Finally, and most importantly, Carolene Products was a case in which the Court repudiated its Lochner era discredited philosophy of judicial review. During this period (1900-1935), the Court, embracing the jurisprudence of laissez-faire, struck down approximately 200 regulatory statutes⁽³¹⁾ as violative of constitutional provisions, such as due process and equal protection. In the defining case, Lochner v. New York,⁽³²⁾ the Court invalidated a New York law that prohibited the employment of bakery employees for more than sixty hours a week on the ground that the law interfered with the employer's liberty of contract protected by the Due Process Clause of the Fourteenth Amendment. The Court held that the New York law was neither a health regulation nor a permissible "labor law," because the State failed to sufficiently show that it was necessary to protect health or that the bakery employees were "wards of the State" who deserve protection through labor legislation.⁽³³⁾ The Lochner Court clearly limited the class of regulatory ends that government was permitted to pursue under its police power, and required a close relationship between the ends and means chosen to achieve them.⁽³⁴⁾ By imposing on government a greater burden of justification than was necessary under the "minimum rationality" review, the Court in fact applied "a stricter, heightened scrutiny" standard.⁽³⁵⁾

The Court abandoned its Lochner jurisprudence in 1937 when it collided with the regulatory initiatives of the New Deal, and the Court was threatened with the "Court packing plan" of President Franklin Roosevelt.⁽³⁶⁾ Carolene Products was one of the major cases through which the Court renounced its thoroughly unpopular review principles of the Lochner era. The Court has repeatedly expressed its extreme reluctance to revisit the Lochner era doctrine of judicial activism.⁽³⁷⁾

B. The Historic Misapplication

While its post-Lochner deference to legislative judgments in economic and regulatory matters remained almost impeccable, the Court took an aggressive stance in the review of legislative and administrative actions that abridge certain fundamental interests or prejudice racial or other minorities. The doctrinal framework for such intensified review, manifested in the strict scrutiny formula, was developed within the parameters of footnote four of the Carolene Products case. The Court began developing the framework with the infamous case, Korematsu v. United States,⁽³⁸⁾ in which the Court held that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect" (though not per se unconstitutional) and that the "courts must subject them to the most rigid scrutiny."⁽³⁹⁾ The supposedly stringent review did not produce a just result in Korematsu because the Court ruled that the challenged internment of all persons of Japanese ancestry on the West Coast during World War II by the United States government was constitutional, even though the internment was based on the judgment of the military and Congress "that there were disloyal members of that population."⁽⁴⁰⁾

The Korematsu Court added the "suspect" criterion to the vocabulary of equal protection review without defining its boundaries. But in a later case, the Court described the indicia of suspectness with reasonable objectivity. A suspect class, the Court said, is one "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 process."⁽⁴¹⁾ The Court often cited the Carolene Products case and used its doctrinal baseline to define a suspect class as a "`discrete and insular' group . . . in need of `extraordinary protection from the majoritarian political process.'"⁽⁴²⁾ Legislative and administrative actions directed against racial minorities with a history of discrimination or politically powerless groups were easily encased within the definition and, therefore, triggered strict scrutiny.⁽⁴³⁾ In recent years, however, the Court has discarded the Carolene Products rationale, and cast the blemish of suspectness on all racial and ancestral classifications, regardless of the historical experience, political strength or the discrete and insular characteristics of the parties burdened by such classifications.⁽⁴⁴⁾ This extension of suspectness, and the unpleasant ramifications of the strict scrutiny resulting therefrom, are claimed to be necessary to attain universal equality under a "color-blind constitution."⁽⁴⁵⁾

The Carolene Products rationale for strict scrutiny of racial classifications that prejudice discrete and insular minorities has strong constitutional basis. In the Slaughter-House Cases,⁽⁴⁶⁾ which, according to Justice Rehnquist, gave the "classic opinion" on the Civil War Amendments,⁽⁴⁷⁾ the Court stated: "We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of [the Equal Protection Clause]."⁽⁴⁸⁾ In subsequent cases, the Court extended legal protection to other races, but only to grant relief to minorities impacted by discrimination.⁽⁴⁹⁾ Racial classifications designed to provide remedial and protective benefits to disadvantaged minorities invariably received judicial solicitude until the emergence of the newly reconstructed strict scrutiny standard.⁽⁵⁰⁾

C. The Torturous Evolution

The evolution of strict scrutiny over the past three decades indicates that the standard itself is devoid of a fixed content or operational predictability. The Supreme Court gave an early version of the standard's content in McLaughlin v. Florida⁽⁵¹⁾ when it stated that a racial classification "will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy."⁽⁵²⁾ In McLaughlin, the Court also announced, for the first time, a rule that racial classifications were presumptively unconstitutional.⁽⁵³⁾ In Graham v. Richardson,⁽⁵⁴⁾ the Court applied strict scrutiny to invalidate a state statute that denied welfare benefits to resident aliens. The Court designated aliens as a "`discrete and insular' minority" and therefore a suspect class just like their racial counterparts.⁽⁵⁵⁾ However, to satisfy the strict scrutiny standard, the Court required a "compelling" rather than a "legitimate" governmental purpose.⁽⁵⁶⁾

Contemporaneously with the McLaughlin decision, the Supreme Court articulated "the `fundamental rights' strand of equal protection strict scrutiny."⁽⁵⁷⁾ The classic case in the fundamental right category is Shapiro v. Thompson⁽⁵⁸⁾ in which the Court invalidated state and federal provisions that imposed a one year durational residence requirement in order to receive welfare benefits. The Court ruled that the provisions denied citizens' constitutionally protected right to travel across the country⁽⁵⁹⁾ and that "any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional."⁽⁶⁰⁾ Just a year later, three of the justices restated the constitutional standard as requiring a "clear showing that the burden imposed [on the citizen's constitutional right] is necessary to protect a compelling and substantial governmental interest."⁽⁶¹⁾

In another landmark decision, Sherbert v. Verner,⁽⁶²⁾ the Supreme Court applied the strict scrutiny test to strike down a state law that burdened the First Amendment right to free exercise of religion.⁽⁶³⁾ The impugned law was facially neutral in that it required all persons seeking unemployment benefits to be available for work every day of the week except Sunday. However, the law imposed an undue burden on the religious practices of a Sabatarian. The Court held that an action which substantially burdens free exercise of religion is unconstitutional unless the government demonstrates that the action is the least restrictive means to achieve a "compelling state interest."⁽⁶⁴⁾ Even though the test announced by the Court "was strict in formulation, its application suggested a somewhat more lenient standard of review."⁽⁶⁵⁾ The Court recently confessed that it "never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation," and in other contexts the Court "sometimes purported to apply the Sherbert test" and nevertheless "always found the test satisfied."⁽⁶⁶⁾ Furthermore, the Court exempted certain governmental actions, such as military regulations, from strict scrutiny review. For instance, in Goldman v. Weinberger,⁽⁶⁷⁾ the Court rejected a Free Exercise Clause challenge by an Orthodox Jewish Air Force officer against a military regulation that prevented him from wearing a yarmulke as part of his military attire. The Court refused to review the regulations under strict scrutiny, because, in the words of Justice Rehnquist, "review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society."⁽⁶⁸⁾ Of course, the government may not be able to demonstrate a compelling state interest to support the challenged regulation under strict scrutiny.

In 1989, the Supreme Court finally abandoned strict scrutiny as a standard to review Free Exercise claims. In Employment Division, Department of Human Resources of Oregon v. Smith,⁽⁶⁹⁾ the Court held that the Free Exercise Clause did not prohibit the State of Oregon from denying unemployment benefits to members of the Native American Church who were dismissed from jobs because of their religiously inspired use of peyote in violation of the state's facially neutral drug laws. The Court declined to review the state law under strict scrutiny asserting that the use of "compelling governmental interest" standard would produce "a private right to ignore generally applicable laws," which the Court considered to be "a constitutional anomaly."⁽⁷⁰⁾ The Court expressed its concern that if the compelling interest test "really means what it says," then "many laws will not meet the test."⁽⁷¹⁾ Therefore, the Court finally gave up strict scrutiny⁽⁷²⁾ in favor of a less stringent review standard it used a century ago in Reynolds v. United States.⁽⁷³⁾

D. Quest for a Middle Ground

The Supreme Court, most noticeably during the last decade of the Warren Court, had firmly established strict scrutiny as the standard to review equal protection claims that implicated suspect classifications and "fundamental interests."⁽⁷⁴⁾ However, the content of the standard has been less understood from the clarity of judicial exposition than from its notoriety as the diametric opposite of minimum scrutiny. The contrast between the two standards is often described in terms of the outcome of their application. While strict scrutiny is perceived to be interventionist and deadly to legislative classifications, minimum scrutiny is acclaimed as generously accommodative and giving "near-absolute deference to legislative judgments"⁽⁷⁵⁾ when they are simply rational⁽⁷⁶⁾ or have a "conceivable basis."⁽⁷⁷⁾ Presumably because of the "[m]ounting [d]iscontent"⁽⁷⁸⁾ with the sharp difference between strict and minimal scrutiny, the Court in two cases⁽⁷⁹⁾ tried to bridge the gap between the two tests by "formulating an overarching inquiry applicable to `all' equal protection cases."⁽⁸⁰⁾ The Court's inquiry revolved around whether there was "an appropriate governmental interest suitably furthered by the differential treatment."⁽⁸¹⁾ But the suggested unified formula failed to take root in equal protection jurisprudence.

The formulation of a unified alternative to the two-tiered equal protection review was rendered almost impossible when the Court confronted value-laden and politically controversial issues such as gender discrimination and race or gender-based affirmative action. These issues involved suspect or quasi-suspect classifications, but at the same time lacked the perniciously invidious attributes deserving strict scrutiny. Thus, in Frontiero v. Richardson,⁽⁸²⁾ a plurality of four justices, led by Justice Brennan, condemned a federal statute's gender classification as suspect under strict scrutiny,⁽⁸³⁾ but a fifth justice who voted with them because the statute "work[ed] an invidious discrimination," declined to endorse the application of strict scrutiny to the case.⁽⁸⁴⁾

Frontiero involved federal statutes that conferred automatic dependent status on spouses of male members of the armed services for purposes of military benefits, while spouses of female members of the services were required to prove that they were, in fact, dependents. The government's justification for the differential treatment of male and female members of the military was administrative convenience in presuming that most spouses seeking benefits would be spouses of military men. The plurality rejected the justification as insufficient to rationalize the classification that was based on an attitude of "`romantic paternalism'" and unfounded stereotypes.⁽⁸⁵⁾ To treat gender classification as "suspect," the plurality equated gender with race and national origin.⁽⁸⁶⁾ The justices pointed out the "immutable characteristic" of sex,⁽⁸⁷⁾ the historical discrimination suffered by women in society and the relative powerlessness of women in the political process.⁽⁸⁸⁾ Despite these factually and logically correct and persuasive arguments in favor of strict scrutiny, a majority of the justices found ways to avoid its adoption.

After three years, the Court agreed on a compromise review formula for gender classification in Craig v. Boren.⁽⁸⁹⁾ The Court formulated an "intermediate scrutiny" test, which required a showing that gender-based classification "must serve important governmental objectives and must be substantially related to achievement of those objectives."⁽⁹⁰⁾ The standard which "apparently [came] out of thin air,"⁽⁹¹⁾ however, "[did] not go so far as to make gender-based classifications `suspect,'" even though it made "gender a disfavored classification."⁽⁹²⁾ The Court did not explain how the new standard differed from the minimum scrutiny and strict scrutiny. Justice Brennan and his fellow advocates of strict scrutiny in Frontiero seemed to regard "intermediate scrutiny" as just a different version of strict scrutiny itself.⁽⁹³⁾ Because the statute challenged in Craig set different minimum ages for men and women to be eligible for buying beer in Oklahoma,⁽⁹⁴⁾ it was held unconstitutional in spite of the view of eight Justices that the means employed to achieve the legislative objective of highway safety were "not irrational."⁽⁹⁵⁾ The adverse decision would not have been possible under the deferential minimum review standard. But, Justice Powell refused to consider it as a "middle-tier" approach even though "candor" compelled him to recognize that the "rational basis" standard took on a "sharper focus" when the Court dealt with gender-based classifications.⁽⁹⁶⁾

As Justice Powell stated in Craig, there were "valid reasons for dissatisfaction with the `two-tier' approach" and that the Court "had difficulty in agreeing upon a standard of equal protection analysis that [could] be applied consistently to the wide variety of legislative classifications."⁽⁹⁷⁾ But the creation of yet another standard, loaded with phrases that the Court has yet to explain, such as "important objective" and "substantial relationship," only served to confound the confusion that pervaded the two-tiered system. Perhaps Justice Stevens may have revealed the truth behind the facade when he stated that the two-tiered analysis of equal protection described nothing more than "a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion."⁽⁹⁸⁾ If that is the case, portraying a single standard as three distinct ones, instead of two, will not constitute a refinement of the review process.

Since Craig, intermediate scrutiny has become an integral part of the equal protection jurisprudence.⁽⁹⁹⁾ Because it functioned like a buffer zone between quasi-suspect gender classifications and the rigors of strict scrutiny, intermediate scrutiny was found useful in validating remedial statutes designed to compensate women for disadvantages suffered in the past.⁽¹⁰⁰⁾ Though tailor-made for review of gender classifications, intermediate scrutiny appeared to some justices as the most appropriate standard of review for benign racial classifications.⁽¹⁰¹⁾ In Metro Broadcasting, Inc. v. Federal Communications Commission,⁽¹⁰²⁾ the Court applied intermediate scrutiny to evaluate an equal protection challenge to an FCC licensing program that gave preference to racial and ethnic minorities. In upholding the constitutionality of the program, a majority of the Court held that:

benign race-conscious measures mandated by Congress--even if those measures are not `remedial' in the sense of being designed to compensate victims of past governmental or societal discrimination--are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.⁽¹⁰³⁾

The governmental objective that was recognized as important to sustain the minority preference was diversity in broadcast programming. Four Justices strongly dissented primarily on the issue of the applicable review standard. The dissenters maintained that tradition and precedents required the Court to apply strict scrutiny to determine whether the racial classification was "necessary and narrowly tailored to achieve a compelling state interest."⁽¹⁰⁴⁾ The dissenters also challenged the claim that an increase in minority ownership of broadcast licenses was substantially related to the government's asserted interest in broadcast program diversity.⁽¹⁰⁵⁾

The Metro majority bypassed the Court's contemporaneous decision in City of Richmond v. J. A. Croson Co.,⁽¹⁰⁶⁾ in which a majority held that the standard of review for all race-based classifications by state and local governments should be strict scrutiny, regardless of the race of those burdened or benefitted by a particular classification.⁽¹⁰⁷⁾ Maintaining that Croson was not applicable to congressionally mandated race-based programs, the Metro majority chose to rely on Fullilove v. Klutznick,⁽¹⁰⁸⁾ the only prior case in which the Court considered the constitutionality of a federal affirmative action program.

In Fullilove, the Court upheld a federal public works contracting program that required state and local governments to set aside ten percent of the dollar amount of federally funded projects for minority business enterprises. Chief Justice Burger, in his plurality opinion, recognized Congress's "comprehensive remedial power" to eliminate barriers that denied equal opportunity to minorities in public contracting business,⁽¹⁰⁹⁾ and the obligation of the Court to accord "'great weight to the decisions of Congress,'" even "when a congressional program raises equal protection concerns."⁽¹¹⁰⁾ The Chief Justice rejected the suggestion that "Congress must act in a wholly `color-blind' fashion"⁽¹¹¹⁾ and held that "it was within congressional power to act on the assumption that in the past some nonminority businesses may have reaped competitive benefits over the years from the virtual exclusion of minority firms from these contracting opportunities," and to impose some burden on the businesses so benefitted as a result of the set aside program.⁽¹¹²⁾ While he acknowledged the need for a "searching examination" of race-based classifications, the Chief Justice specifically declined to "adopt, either expressly or implicitly, the formulas of analysis articulated" in the equal protection cases.⁽¹¹³⁾

The Metro majority concluded that "much of the language and reasoning in Croson reaffirmed the lesson of Fullilove that race-conscious classifications adopted by Congress to address racial and ethnic discrimination are subject to a different standard than such classifications prescribed by state and local governments."⁽¹¹⁴⁾ To support this conclusion, the Metro majority cited the statement of Justice O'Connor, the author of the Croson opinion, that unlike state and local governments, "`Congress may identify and redress the effects of society-wide discrimination'" and that it "need not make specific findings of discrimination to engage in race-conscious relief."⁽¹¹⁵⁾

The Metro majority was justified in drawing such a conclusion from Croson. However, the Metro majority's idea of equating the hybrid standard of Fullilove with intermediate scrutiny has no factual or logical basis. Justice Souter may have made the correct assessment when he saw Chief Justice Burger's non-categorical approach "as reflecting his conviction that the treble-tiered scrutiny structure merely embroidered on a single standard of reasonableness whenever an equal protection challenge required a balancing of justification against probable harm."⁽¹¹⁶⁾

The Dilemma of the Compelling Interest

What is distinctive about strict scrutiny is its inexorable emphasis on the dogmatic formula that race-based governmental action must be narrowly tailored--not just substantially or rationally related--to achieve a compelling, not simply important or legitimate, state interest. The narrow-tailoring requirement comes into play only when the governmental action under review is shown to be supported by a compelling state interest. The purpose of the narrow tailoring requirement is to focus the governmental action on the pursued interest and to prevent the governmental action from straying outside its permissible course. Thus, the linchpin of constitutionality under strict scrutiny is the compelling state interest. It would be impossible to understand the full ramifications of strict scrutiny without deciphering the meaning of compelling state interest.

A. Lack of Consensus on the Meaning of Compelling State Interest

Despite its unrelenting enthusiasm to strike down race-conscious measures under strict scrutiny, the United States Supreme Court has yet to demonstrate its ability and willingness to articulate what constitutes a compelling state interest and how it differs from its intermediate scrutiny counterpart--an important state interest. The Court keeps reminding the world that the choice of these phrases is neither accidental nor the product of "lawyers' quibble over words"⁽¹¹⁷⁾ but rather is meant to have outcome-determinative consequences.⁽¹¹⁸⁾ Significantly, Justice

Rehnquist repeatedly refused to sanctify such phrases as "substantially related" and "important governmental objectives" because they are "so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments."⁽¹¹⁹⁾ He also noted that the phrases are not part of the language of the Equal Protection Clause. The logic of Justice Rehnquist's objections is applicable to the use of "compelling state interest" since the phrase is equally diaphanous and elastic, and it has no textual warrant in the Constitution.

The Court's descriptions of "compelling state interest" during the past three decades or more have not been enlightening, and at times were contradictory. Justice Frankfurter was the first to use the phrase in his concurring opinion in Sweezy v. New Hampshire.⁽¹²⁰⁾ The case involved a college professor who was convicted for not revealing information about his personal life and political affiliation with the Communist Party as required by the laws of New Hampshire. Concurring in the reversal of the conviction, Justice Frankfurter stated that to deprive a person of "so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling."⁽¹²¹⁾ According to Justice Frankfurter, the overwhelming liberty interest of the individual cannot be encroached upon on the basis of "so meagre a countervailing interest of the State as may be argumentatively found in the remote, shadowy threat to the security of New Hampshire allegedly presented"⁽¹²²⁾ by the individual's political party. It is clear that Justice Frankfurter's conception of a compelling interest meant nothing more than a state interest that is weightier than the trifling interest asserted by the state in the case.⁽¹²³⁾

Ever since Sweezy, the phrase `compelling state interest' sailed aimlessly in unchartered waters. The dimensions of the phrase varied with the predilection of the beholding justice. In Oregon v. Mitchell<sup>(124)</sup> three justices joined the Court's majority to strike down Oregon's durational residence requirement for voting because the state failed to show that the measure was "necessary to protect a compelling and substantial governmental interest."<sup>(125)</sup> The Supreme Court found similar durational residence requirements of the state of Tennessee unconstitutional<sup>(126)</sup> since the state did not show that the "requirements [were] needed to further a sufficiently substantial state interest."<sup>(127)</sup> Justice Marshall, writing for the Court, acknowledged the state's obligation, under the "strict equal protection test," to "demonstrate that [the challenged] laws are `necessary to promote a compelling governmental interest'" but he maintained that the "key words emphasize a matter of degree," not a precise mathematical formula.⁽¹²⁸⁾ Justice Marshall's observations are in line with several other strict scrutiny decisions in which the Court readily equated compelling interest with "legitimate overriding purpose"⁽¹²⁹⁾ or "legitimate state interest."⁽¹³⁰⁾

Even the justices who are the staunchest adherents of strict scrutiny seem to project blurred visions of compelling state interests. Justice Scalia, for instance, has a dual vision of compelling interest--one applicable to the Fourth Amendment and the other to the Fourteenth. In Vernonia School District v. Acton,⁽¹³¹⁾ he propounded a permissive version of compelling interest to authorize public school officials to conduct random urine drug testing of students who wished to participate in inter-scholastic athletics. Writing for a six-to-three majority of the Court, Justice Scalia found that the drug testing program did not violate the "unreasonable searches and seizures" provisions of the Fourth Amendment, as claimed by the plaintiff student, because the program was supported by a compelling state interest--an interest "which appear[ed] important enough to justify the particular search at hand."⁽¹³²⁾ Justice Scalia summarily dismissed the idea that "the phrase `compelling state interest,' in the Fourth Amendment context, describes a fixed, minimum quantum of governmental concern."⁽¹³³⁾

Undoubtedly, in the universe of Justice Scalia's Fourth Amendment, compelling state interests are anything but compelling. He made the meaning of the phrase variable and open-ended, susceptible to ad hoc determination by governments, and ultimately by the courts. In stark contrast, Justice Scalia had declared his unwillingness to recognize any compelling interest that would justify a race-based remedial program under the Equal Protection Clause. In Adarand Constructors, Inc. v. Pena,⁽¹³⁴⁾ he stated that the "government can never have a `compelling interest' in discriminating on the basis of race in order to `make up' for past racial discrimination in the opposite direction."⁽¹³⁵⁾ Justice Scalia's inflexible concept of compelling interest, not shared by any other justices, has no doctrinal foundation because it negates the very idea of having strict scrutiny.⁽¹³⁶⁾

Justice O'Connor's initial position on the meaning of compelling interest was decidedly tentative and noncommittal. In her concurring opinion in Wygant v. Jackson Board of Education,⁽¹³⁷⁾ Justice O'Connor claimed that with a "fair measure of consensus" the members of the Court approached affirmative action programs irrespective of the standard of review used. Justice O'Connor noted that "the distinction between a `compelling' and an `important' governmental purpose may be a negligible one."⁽¹³⁸⁾ She readily recognized two compelling interests that would justify race-based affirmative action programs: "remedying past or present racial discrimination by a state actor," and "promotion of racial diversity . . . at least in the context of higher education."⁽¹³⁹⁾ The Justice also left "the possibility that the Court will find other governmental interests . . . to be sufficiently `important' or `compelling' to sustain the use of affirmative action policies."⁽¹⁴⁰⁾

Justice O'Connor no longer believes that the Court should let the meaning of compelling state interest evolve from future cases. Nor is she prepared to give meaning to the phrase by illustration or by a precise definition. Instead, she emerged as the exponent of the narrow and rigid view that "[m]odern equal protection doctrine has recognized only one [compelling] interest: remedying the effects of racial discrimination."⁽¹⁴¹⁾ Justice O'Connor categorically held that an interest in remedying societal discrimination or in increasing the diversity of broadcast viewpoints cannot be considered compelling.⁽¹⁴²⁾ She did not refer to her contrary statements in Wygant, or explain her reasons for her change of view.

Chief Justice Rehnquist's views on phrases like compelling state interest have undergone remarkable transformation. In elucidating the meaning of the phrase, he leapfrogged from a stance of incomprehensibility to one of total clarity. When the Supreme Court adopted intermediate scrutiny as the standard for review of gender classifications,⁽¹⁴³⁾ one of the critical questions posed by Justice Rehnquist in his dissent was: "How is this Court to divine what objectives are important?"⁽¹⁴⁴⁾ His position was that the phrase "important governmental objective" was so diaphanous and elastic as to invite subjective and arbitrary judicial decision-making. Justice Rehnquist raised the same objection against the use of a similar phrase by stating that "[n]owhere in the text of the Constitution, or in its plain implications, is there any guide for determining what is a `legitimate' state interest."⁽¹⁴⁵⁾ The same objections should perforce be leveled against the use of an equally uncertain phrase, "compelling state interest."

Apparently to fulfill his desire to join the frenzy against race-based affirmative action and redistricting, the Chief Justice has espoused Justice O'Connor's interpretation of compelling state interest without any reservation. He even expanded upon Justice O'Connor's core proposition that the only compelling interest that sufficiently justifies a race-based action is the interest in remedying the effects of past or present discrimination.⁽¹⁴⁶⁾ Thus in his majority opinion in Shaw v. Hunt,⁽¹⁴⁷⁾ which invalidated a state redistricting plan, Chief Justice Rehnquist held that "[f]or [an] interest [in remedying the effects of past or present racial discrimination] to rise to the level of a compelling state interest, it must satisfy two conditions." First, the discrimination must be identified with specificity--a condition that makes "an effort to alleviate the effects of societal discrimination . . . not a compelling interest," and second, "the institution that makes the racial distinction must have had a `strong basis in evidence' to conclude that remedial action was necessary."⁽¹⁴⁸⁾ In making these sweeping and conclusory statements concerning the dimensions of compelling state interest, the Chief Justice neither identified their constitutional source nor spelled out any guidelines for ascertaining the meaning of the phrase in other contexts. In light of his acknowledgment that the Court had "not always provided precise guidance on how closely the means (the racial classification) must serve the end (the justification or compelling interest),"⁽¹⁴⁹⁾ it is reasonable to assume that the Chief Justice deliberately evaded the responsibility to provide precise guidance on the meaning and scope of compelling state interest.

In interpreting compelling state interest, the Court has revealed not only considerable incongruence in the views of different justices, but unexplained inconsistencies in the statements of individual justices as well. This state of disarray does not bode well for the viability of strict scrutiny as a dependable standard of equal protection review and does not enhance the credibility of the Court which trumpets the virtues of doctrinal consistency and congruity. How can the Court ask Congress to come up with a compelling state interest to validate its legislation under the Fourteenth Amendment if the Court itself is unable to understand or articulate what constitutes such an interest?

B.  Compelling Interest of Congress

Congress, if forced to identify a compelling state interest without the benefit of unambiguous judicial guidelines, will encounter insurmountable obstacles. First, for members of Congress, no interests can be more compelling than the interests of their constituents. It would be entirely rational for a member of Congress to uphold an interest widely supported by his or her constituents as compelling and to convince a majority of his or her congressional colleagues to vote in favor of such interest. Each member of Congress has a primary, even constitutional, obligation to exercise his or her own legislative judgment on constituent interests, which inevitably includes an assessment of the importance of such interests. No member of Congress should be faced with the dilemma of not pursuing a constituent-supported compelling interest for fear that a judge may in the future find the interest less than compelling.

Second, members of Congress's legislative judgments about the importance of interests are based on the information available to them at the time of the enactment of legislation embodying the interests. Most of this information may not even appear in the legislative record. The courts review the compelling nature of the interests at a future date on the basis of a record produced in court proceedings, which may include fragments of the legislative record. To borrow Chief Justice Rehnquist's analogy, made in a different context, "[t]his sort of Monday morning quarterbacking"⁽¹⁵⁰⁾ will only encourage judicial decision making on the basis of incomplete, and even inaccurate, information.⁽¹⁵¹⁾

Third, what kind of legislative records must be made to support an interest that Congress determined to be compelling?⁽¹⁵²⁾ To the extent that assessments of the importance of an interest by individual members of Congress are based on their personal knowledge, expertise and experience as legislators, a court's review of legislative judgment concerning the interest will not be meaningful without calling the legislators to the witness stand.⁽¹⁵³⁾

Finally, the term "compelling governmental interest" is not likely to make much sense to members of Congress. "The interests themselves can hardly be governmental; they must be public."⁽¹⁵⁴⁾ The interests commonly attributed to the government are really compelling public purposes or collective interests "held in some sense in trust for the people."⁽¹⁵⁵⁾ The compelling purposes are the basis of democratic decision making and they are "implicit in existing and textually defined constitutional rights."⁽¹⁵⁶⁾ Individual rights may not be superseded by a public purpose, compelling or otherwise, but Congress may accord less weight to them when it legislates to achieve a compelling public purpose. Unlike Congress, the courts are not charged with the constitutional responsibility to achieve public purposes. The courts give primacy to individual rights, and they are instinctively inclined to assess all countervailing interests and purposes from the perspective of a protector of individual rights. Thus, the compelling nature of an interest or purpose that sustains a legislation is assessed by the courts and Congress with two different standards of measurements--like the courts in inches and Congress in pounds--that fail to yield accurate and uniform results.

C. So What Is so Sacred about Strict Scrutiny?

The Supreme Court's continuing failure to objectively define compelling state interest is understandable because the phrase is inherently indefinable. But the Court's insistence that Congress should dig up and produce compelling state interests to justify legislation enacted pursuant to its constitutional powers is totally inexcusable. There is a general concern that compelling interest may be an engine of judicial overreaching⁽¹⁵⁷⁾ or "may grease the wheels of a totalitarian state."⁽¹⁵⁸⁾ The precise ramifications of the compelling state interest requirement in the regime of strict scrutiny may be difficult to pinpoint, but the incoherence of the term may, in part, account for the doctrinal difficulties that pervade the Court's current equal protection review.

Why is the narrow majority of the Supreme Court so adamant to embrace strict scrutiny when the justices should have known that it is an abstract and incorrigible standard? According to Justice O'Connor, the purpose of strict scrutiny is two fold: first, to "`smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool;" and second, it "ensures that the means chosen `fit' this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype."⁽¹⁵⁹⁾ There is absolutely no empirical reason to believe that strict scrutiny is as infallible as Justice O'Connor claims or that the twin purposes she seeks to achieve by its application cannot be achieved under a lower level of review.

That strict scrutiny is not a fool-proof device capable of filtering out racial prejudices and stereotypes was conclusively demonstrated by the Supreme Court's infamous decisions in Korematsu v. United States⁽¹⁶⁰⁾ and Hirabayashi v. United States.⁽¹⁶¹⁾ In both cases the Court announced grandiose principles of strict scrutiny, but, nevertheless, permitted the government to single out Japanese Americans for the most discriminatory and humiliating treatment solely on the basis of their ancestry. Ironically, Justice O'Connor repeatedly cited the two cases in Adarand Constructors, Inc. v. Pena⁽¹⁶²⁾ to bolster her advocacy in favor of applying strict scrutiny to federal legislation. In her opinion, "Korematsu demonstrates vividly that even `the most rigid scrutiny' can sometimes fail to detect an illegitimate racial classification."⁽¹⁶³⁾ Even if the failure of strict scrutiny in Korematsu was an aberration, as Justice O'Connor's revisionist view suggests, it was a very costly failure for Japanese Americans, and to the cause of equality and racial justice in America. The lesson of Korematsu is not that the strict scrutiny review be made even stricter, but that high sounding review formulae are no more than "facile abstractions used to justify a result."⁽¹⁶⁴⁾

The Court's avowed purpose of rooting out illegitimate racial prejudice or stereotype could be easily accomplished with a lower level of scrutiny. For over two decades, the Court has been reviewing gender-based classifications under "intermediate scrutiny" or "skeptical scrutiny," as it has been recently renamed,⁽¹⁶⁵⁾ to ascertain whether "the statutory objective itself reflects archaic and stereotypic notions"⁽¹⁶⁶⁾ about the societal roles and capabilities of the sexes. By requiring an "'exceedingly persuasive justification'"⁽¹⁶⁷⁾ for gender-based classification, the test was able to successfully weed out unconstitutional gender stereotyping.

Racial discrimination is inherently indistinguishable from gender discrimination. Just as the "unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality,"⁽¹⁶⁸⁾ "our Nation has had a long and unfortunate history of sex discrimination."⁽¹⁶⁹⁾ So also, just as racial and ethnic classifications are inherently suspect and presumptively unconstitutional,⁽¹⁷⁰⁾ Supreme Court cases "reveal a strong presumption that gender classifications are invalid."⁽¹⁷¹⁾ Since the touchstone of both racial and gender equality is the virtually identical prohibition of "`archaic and overbroad' generalizations,"⁽¹⁷²⁾ prejudices and stereotypes concerning race and gender, the review standard that is appropriate for gender classifications should be equally appropriate for racial classifications.⁽¹⁷³⁾

In the context of race-based affirmative action, the Supreme Court keeps on insisting that, without strict scrutiny, "there is simply no way of determining what classifications are `benign' or `remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics."⁽¹⁷⁴⁾ The Court may have considerable difficulty in applying this rationale to congressionally mandated race-based programs without sidelining important constitutional and democratic principles. To begin with, Congress has the primary constitutional responsibility to decide whether there is a need to make a benign or remedial race-based classification.⁽¹⁷⁵⁾ The traditional principle of interbranch deference to coordinate branches of government should prevent the Court from approaching congressional decisions with suspicions of undisclosed and ulterior motives.⁽¹⁷⁶⁾ To harbor the suspicion that the Congress might permit a malevolent racial discrimination to masquerade as a benevolent racial classification is to insinuate that a majority of the elected representatives of the government would dare to misrepresent their legislative decisions to the Nation.

Moreover, decisions concerning the benign or remedial character of race-based affirmative action programs are not ordinarily made by any biased representatives of the beneficiary class. Rather, the programs are the result of conscious decisions by representatives of the majority "to impose incidental costs on the majority of their constituents in order to provide a benefit to a disadvantaged minority."⁽¹⁷⁷⁾ Obviously, a congressional majority is unlikely to make such politically risky decisions unless they consider them absolutely necessary to achieve a remedial purpose. As Professor John Ely stated, "[w]hen the group that controls the decision making process classifies so as to advantage a minority and disadvantage itself, the reasons for being unusually suspicious, and, consequently, employing a stringent brand of review, are lacking."⁽¹⁷⁸⁾

Finally, the foray of strict scrutiny into the domain of federal affirmative action would run counter to the "basic equal protection principle" established in Washington v. Davis,⁽¹⁷⁹⁾ "that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose."⁽¹⁸⁰⁾ The Court repeatedly required a showing of racially discriminatory intent or purpose to establish a violation of the Equal Protection Clause.⁽¹⁸¹⁾ Such a discriminatory purpose "implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group."⁽¹⁸²⁾ Absent proof of discriminatory purpose, claims that a statute has a disparate racial impact are reviewed under the rational basis standard,⁽¹⁸³⁾ imposing the least burden of justification on the governmental entity. It is impossible to attribute to Congress any invidious discriminatory intent in establishing a race-based affirmative action program. Therefore, under the basic equal protection principle, affirmative action programs should not be reviewed under strict scrutiny. However, the Court extricates itself from the Davis principle by professing to decline inquiry into legislative purpose "when the racial classification appears on the face of the statute."⁽¹⁸⁴⁾ But the declared mission of strict scrutiny is to "ferret out classifications [that are] in reality malign,"⁽¹⁸⁵⁾ to make sure that they are not "motivated by illegitimate notions of racial inferiority or simple racial politics."⁽¹⁸⁶⁾ If that is the case, the mere presence of a facially racial classification in affirmative action programs seems to be a flimsy pretext to employ strict scrutiny and impose a heavy burden of justification on Congress which is completely devoid of any invidious discriminatory intent.

Is Congress' Enforcement Power in Jeopardy?

One of the strange aspects of the Supreme Court's decision to apply strict scrutiny to congressionally enacted race-based affirmative action programs is its disjunction from Congress' Section five enforcement power. Justice O'Connor's majority opinion in Adarand conveniently side-stepped the issue of "the authority § 5 of the Fourteenth Amendment confers upon Congress to deal with the problem of racial discrimination, and the extent to which courts should defer to Congress' exercise of that authority," by simply claiming that the Court "need not, and do[es] not, address [the] differences [among the Justices on the issue] today."⁽¹⁸⁷⁾ Why not? Justice O'Connor did not care to explain. Obviously, it was because she sensed that it was unwise and untimely to open Pandora's box when she "was unable to rebut cogently the argument that the text of Section 5 allows"⁽¹⁸⁸⁾ review of congressional action under a lesser standard than strict scrutiny.

In dissent, Justice Souter, joined by Justices Ginsberg and Breyer, sought solace in the majority's refusal to address the scope of Section five. He maintained that there was "no reason to treat the [majority] opinion as affecting one way or another the views of § 5 power, described [variously in prior decisions] as `broad,' `unique,' and `unlike [that of] any state or political subdivision.'"⁽¹⁸⁹⁾

By expressing such optimism, the dissenters were merely engaging in a difficult salvaging operation. Through its decision to apply strict scrutiny to congressional legislation, the O'Connor majority cast a cloud of uncertainty over Congress' Section five enforcement authority. If the majority did not purposely undermine Congress' authority, then it appears that it has built the narrow concrete tunnel of strict scrutiny without considering in advance whether the oversized locomotive of congressional enforcement authority will pass through it.

The Court's concept of strict scrutiny is fundamentally in conflict with the congressional power to enforce the Fourteenth Amendment by appropriate legislation. Strict scrutiny severely restricts Congress' freedom to choose legislative ends and means. First, Congress would have a tough time satisfying the compelling interest requirement. Legislation designed to remedy "the effects of past or present racial discrimination" would not pass the compelling interest threshold unless the discrimination is an "`identified discrimination'"<sup>(190)</sup> and the need for remedial action is supported by a "`strong basis in evidence'"⁽¹⁹¹⁾ and "proper findings."⁽¹⁹²⁾ Second, most ominously for Congress, the Court insists that "an effort to alleviate the effects of societal discrimination is not a compelling interest."⁽¹⁹³⁾ Finally, even when there is a demonstrably compelling interest in remedial legislation, the judiciary will still hold its veto power over the means chosen by Congress to achieve the interest. The narrow tailoring prong of strict scrutiny requires that "the means employed must `fit' the ends pursued" very closely⁽¹⁹⁴⁾ or the means chosen "must fit with greater precision than any alternative remedy."⁽¹⁹⁵⁾ These inflexible requirements of strict scrutiny are incompatible with the core of Congressional enforcement power and contrary to the Supreme Court's prior decisions.

A. Undoing a Century of Judicial Construction

The boundaries of congressional power under the identical enforcement provisions of the Civil War Amendments were settled in historic judicial battles. In the Civil Rights Cases,⁽¹⁹⁶⁾ the Supreme Court, while conceding the right of Congress under Section two of the Thirteenth Amendment⁽¹⁹⁷⁾ to "enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents," claimed to retain the judicial power to make independent judgments as to what constituted badges and incidents of slavery.⁽¹⁹⁸⁾ The restrictive holding of the Civil Rights Cases was overruled, eighty-five years later, by Jones v. Alfred H. Mayer Co.⁽¹⁹⁹⁾ in which the Court, after reciting the legislative history of the Amendment,⁽²⁰⁰⁾ declared that "[s]urely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation."⁽²⁰¹⁾

In Lassiter v. Northampton County Board of Elections,⁽²⁰²⁾ the Court ruled that a state literacy test for voting that disproportionately disfranchised minorities did not violate the Fifteenth Amendment⁽²⁰³⁾ insofar as the test, fair on its face, was administered in a racially nondiscriminatory manner. But, Congress, in apparent disregard of the Lassiter decision, enacted the Voting Rights Act of 1965⁽²⁰⁴⁾ which, in part, temporarily suspended state literacy tests for voting. Upholding the Act's per se ban on such tests, the Court in South Carolina v. Katzenbach⁽²⁰⁵⁾ declared that "Congress has full remedial powers" under Section two of the Fifteenth Amendment, and that, as against the reserved powers of the states, it "may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting."⁽²⁰⁶⁾ In City of Rome v. United States⁽²⁰⁷⁾ the Supreme Court further clarified the broad enforcement powers of Congress by holding that the Voting Rights Act's "ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the Fifteenth Amendment, even if it is assumed that § 1 of the Amendment prohibits only intentional discrimination in voting."⁽²⁰⁸⁾ The Justices of the Supreme Court generally seem to agree that "the nature of the enforcement powers conferred [on Congress] by the Fourteenth and Fifteenth Amendments has always been treated as coextensive."⁽²⁰⁹⁾

From the beginning, the Court construed Congress' legislative powers under Section five of the Fourteenth Amendment as broadly as those under the Necessary and Proper Clause⁽²¹⁰⁾ as construed by Chief Justice Marshall in McCulloch v. Maryland.⁽²¹¹⁾ Thus in Ex parte Virginia⁽²¹²⁾ the Court held that whatever legislation is adapted to "secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against state denial or invasion, if not prohibited, is brought within the domain of congressional power."⁽²¹³⁾ But the Court's most definitive and far-reaching interpretation of Congress' Section five power was given in Katzenbach v. Morgan.⁽²¹⁴⁾ The case involved the literacy test provision of the federal Voting Rights Act, as it applied to the Spanish-speaking Puerto Rican population. Upholding the constitutionality of the provision, the Court stated that "the McCulloch v. Maryland standard is the measure of what constitutes `appropriate legislation' under § 5 of the Fourteenth Amendment."<sup>(215)</sup> Applying this standard, the Court found that "§ 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment."<sup>(216)</sup> Significantly, the Court left the task of particularizing the "`majestic generalities'" of Section one of the Amendment to Congress.⁽²¹⁷⁾ The Court expressed its willingness to approve Section five legislation if it "perceive[s] a basis upon which Congress might predicate a judgment"⁽²¹⁸⁾ that enforcement action is necessary to counter discrimination.

Fullilove v. Klutznick⁽²¹⁹⁾ undoubtedly was the high watermark of the Supreme Court's Section five jurisprudence. In Fullilove, six Justices of the Court approved the power of Congress to establish a race-based affirmative action program without being subjected to strict scrutiny.⁽²²⁰⁾ The commanding plurality opinion of Chief Justice Burger consolidated and clarified the Court's prior interpretations of Section five. Articulating a constitutional scheme of judicial deference to congressional action taken pursuant to its Section five enforcement authority, he underscored both the legislative branch's "heavy burden of dealing with a host of intractable economic and social problems,"⁽²²¹⁾ and its "broad remedial powers."⁽²²²⁾ "It is fundamental," observed the Chief Justice, "that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees."⁽²²³⁾ The Chief Justice summarily rejected "the contention that in the remedial context the Congress must act in a wholly `color-blind' fashion."⁽²²⁴⁾ He endorsed prior Supreme Court cases which held that race must be considered both in ascertaining constitutional violations and in formulating remedies.⁽²²⁵⁾

When a majority of the Supreme Court agreed, for the first time, in City of Richmond v. J. A. Croson Co.⁽²²⁶⁾ to apply strict scrutiny to race-based affirmative action adopted by states or their political subdivisions, they meticulously left Fullilove and its ancestry unscathed. Announcing the judgment of the Court in Croson, Justice O'Connor distinguished Fullilove by holding that Congress, unlike any state or political subdivision, has a specific constitutional mandate to enforce the dictates of the Fourteenth Amendment, and that the "power to `enforce' may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations."⁽²²⁷⁾ All of the justices who wrote opinions in Croson gave the unequivocal impression that strict scrutiny would not be applied to congressional action.⁽²²⁸⁾ Thus the majority opinion in Metro Broadcasting, Inc. v. Federal Communications Commission,⁽²²⁹⁾ applying intermediate scrutiny to a congressionally mandated affirmative action program, correctly concluded that "Croson cannot be read to undermine our decision in Fullilove."⁽²³⁰⁾ It is now generally known that Justice White would not have joined the other adherents of strict scrutiny in Croson unless they agreed to leave Fullilove intact, and without his support there would have been no majority to adopt strict scrutiny.⁽²³¹⁾

Thus, clearly the weight of precedent is overwhelmingly against the application of strict scrutiny to congressional legislation enacted pursuant to the enforcement provision of the Fourteenth Amendment. That seems to be the reason why Justice O'Connor's majority opinion in Adarand chose not to resort to precedents, but to "propositions"⁽²³²⁾--an unprecedented twist in the equal protection jurisprudence. Supreme Court decisions, spanning over a century, have recognized that the essence of the enforcement provision is the discretionary power of Congress to determine "whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment."⁽²³³⁾ Unlike the strictures of strict scrutiny, the Court's precedents do not require Congress to justify its remedial action by a "strong basis in evidence" or show that it "fits with greater precision than any alternative remedy."⁽²³⁴⁾ By virtue of its enforcement power, Congress may "legislate without compiling the kind of `record' appropriate with respect to judicial or administrative proceedings,"⁽²³⁵⁾ and it "need not make specific findings of discrimination to engage in race-conscious relief."⁽²³⁶⁾ In Fullilove, for instance, the Court held that it was within the congressional power to establish a race-based set-aside program for minorities "on the assumption that in the past some nonminority businesses may have reaped competitive benefit over the years from the virtual exclusion of minority firms from [those] contracting opportunities."⁽²³⁷⁾ While strict scrutiny does not recognize alleviation of societal discrimination as a compelling interest, the Court's Section five cases permit Congress to "identify and redress the effects of society-wide discrimination"⁽²³⁸⁾ or to "determine that [a] problem [is] national in scope"⁽²³⁹⁾ and thus warrants remedial action. Under rules of prior cases, in a facial challenge to a race-based affirmative action, "doubts must be resolved in support of the congressional judgment" that the "program is a necessary step to effectuate the constitutional mandate for equality,"⁽²⁴⁰⁾ but under strict scrutiny, the program is suspect and presumed to be unconstitutional.

Strict scrutiny and Congress' Section five enforcement powers cannot co-exist. The Court's century-old interpretation of the congressional power was consistent with the original intent and the text of the Fourteenth Amendment. The Adarand majority grudgingly tried to change the course by stating that "to the extent (if any) that Fullilove held federal racial classifications to be subject to a less rigorous standard, it is no longer controlling."⁽²⁴¹⁾ Regimenting federal lawmakers to the Adarand principles of strict scrutiny will take more than overruling Fullilove; it will necessitate the repudiation of the scores of sound and principled decisions of the Court, and even a blatant judicial rewriting of the text of the Constitution.

One of the many ironies of the Adarand decision is that it overruled Fullilove for no reason other than its failure to apply strict scrutiny. The adherents of strict scrutiny treated Fullilove with respect in Croson, and certainly they refrained from chastising it in Adarand. The same five Justices who constituted the Adarand majority recently stated that the principle of stare decisis would "counsel strongly against reconsideration of [the Court's] precedent," except "`when governing decisions are unworkable or are badly reasoned.'"<sup>(242)</sup> In Planned Parenthood of Southeastern Pennsylvania v. Casey,<sup>(243)</sup> Justice O'Connor envisioned yet another occasion for overruling a constitutional decision. Using the overruling of Plessy v. Ferguson<sup>(244)</sup> in 1954 by Brown v. Board of Education<sup>(245)</sup> as an example, she claimed that departures from existing decisions involving the language of the Constitution that is "hard to fathom" would be justified under the principles of stare decisis when "the Court's Justices are sometimes able to perceive significant facts or to understand principles of law that eluded their predecessors."<sup>(246)</sup> In Seminole Tribe of Florida v. Florida,<sup>(247)</sup> the strict scrutiny adherents, led by Chief Justice Rehnquist, adulated the value of stare decisis in "`the evenhanded, predictable, and consistent development of legal principles'" and in promoting "`the actual and perceived integrity of the judicial process.'"⁽²⁴⁸⁾ All the virtues of stare decisis seemed irrelevant to the Adarand majority. It simply decided to overrule Fullilove without making any finding that the decision was "unworkable" or "badly reasoned," and without uncovering any new facts or "principles of law that eluded their predecessors."⁽²⁴⁹⁾

B. Lack of Concern for Framers' Intent

The Adarand Court, rather boldly, claimed that by repudiating the "untenable distinction" between state and federal racial classifications in the application of strict scrutiny, it was not departing from "the fabric of the law" but was only restoring it.⁽²⁵⁰⁾ But the majority opinion of Justice O'Connor made no effort to weave the fabric with the threads of history that bestowed on Congress the "unique powers" of enforcement.⁽²⁵¹⁾ Reviewing historical information to define the purpose of vague constitutional provisions and the original intent of the Constitution's Framers is hardly a novel idea of constitutional interpretation. In recent years, the Court has been frequently resorting to the Framers' intent to ascertain the meaning of general and vague constitutional provisions.

Two cases decided contemporaneously with Adarand amply illustrate the significance that the Court attributes to the Framers' intent. In United States v. Lopez,⁽²⁵²⁾ the Court, partly relying on the Framers' intent of federalism, struck down a federal law that banned the possession of guns near schools. This was an "epochal case"⁽²⁵³⁾ because, for the first time since 1936, the Court invalidated a statute "for exceeding the authority granted to Congress by the Commerce Clause."⁽²⁵⁴⁾ In United States Term Limits, Inc. v. Thornton,⁽²⁵⁵⁾ the Court, by a 5-4 vote⁽²⁵⁶⁾ held that neither Congress nor states may impose term limits on members of Congress because such limits constitute impermissible additions to the age, citizenship and residency requirements set forth in the Qualification Clause of the Constitution.⁽²⁵⁷⁾ The majority and the dissenters crafted their respective positions on term limits almost exclusively on the basis of their understanding of the intent of the Framers as revealed at the Constitutional Convention and the ratification debates.⁽²⁵⁸⁾ The majority found that "with respect to Congress, the Framers intended the Constitution to establish fixed qualifications,"⁽²⁵⁹⁾ while the dissenters concluded that "[t]he fact that the Framers did not grant a qualification-setting power to Congress [did] not imply that they wanted to bar its exercise at the state level."⁽²⁶⁰⁾

The Court's leading architects of strict scrutiny are also ardent advocates of original intent. Justice Scalia stands out as the most articulate "originalist"⁽²⁶¹⁾ among the conservative Justices. His postulate is that the "theoretical defect of nonoriginalism . . . is its incompatibility with the very principle that legitimizes judicial review of constitutionality," since the power of judicial review can only be derived from a constitution, an exalted instrument, as envisioned by the Framers, "that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law."⁽²⁶²⁾ Chief Justice Rehnquist and Justice O'Connor are also originalists. For instance, in Nixon v. United States,⁽²⁶³⁾ the Chief Justice, declaring that the U.S. Senate has the final authority to determine the meaning of the Impeachment Trial Clause,⁽²⁶⁴⁾ stated that "[t]he parties [did] not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers."⁽²⁶⁵⁾ Similarly, Justice O'Connor in Wallace v. Jaffree,⁽²⁶⁶⁾ for instance, stressed the need for making decisions in conformity with the Framers' intent, as revealed by the history of the Constitution.⁽²⁶⁷⁾

Despite the controversial constitutional premise of its affirmative action decisions, and their considerably more far-reaching consequences than decisions on issues like congressional term limits, the Court uniformly shied away from anchoring its new equal protection principles in the original intent or history of the Fourteenth Amendment. Any reference to the intentions of the Framers of the Reconstruction Amendments would not have served the Court's purpose. The Framers would neither have contemplated strict scrutiny of Congress' enforcement legislation nor have envisioned making a color-blind constitution out of the Fifth Amendment.

As Justice Harlan observed in 1883, "[t]he Fourteenth Amendment presents the first instance in our history of the investiture of Congress with affirmative power, by legislation to enforce an express prohibition upon the states."⁽²⁶⁸⁾ The drafters of the Fourteenth Amendment chose the extraordinary enforcement mechanism primarily due to their lack of confidence in the Supreme Court as a reliable enforcer of the anti-discrimination provisions.⁽²⁶⁹⁾ The Supreme Court's pre-Civil War decisions such as Dred Scott v. Sandford⁽²⁷⁰⁾ which declared African Americans as "a subordinate and inferior class of beings,"⁽²⁷¹⁾ were fresh in the drafters' minds. The drafters were even afraid that without the amendment to back it up, the Civil Rights Act of 1866 might be struck down by the Court as unauthorized by the constitutional powers of Congress.⁽²⁷²⁾ Suspicions about the Court's impartiality were substantiated by its major post-Civil War decisions which attempted to give the narrowest possible construction to the enforcement powers of Congress.⁽²⁷³⁾

Thus, undoubtedly, with the adoption of the Fourteenth Amendment, "[i]t is the power of Congress which has been enlarged" and "[s]ome legislation is contemplated to make the amendments fully effective."⁽²⁷⁴⁾ Section five of the Amendment does not say "that the judicial power of the nation may be exerted for the enforcement of that amendment."⁽²⁷⁵⁾ The history, text and contemporary judicial interpretation of Section five all elucidate the drafters' conscious choice of Congress "as the primary organ for the implementation of the guarantees of . . . equal protection"⁽²⁷⁶⁾ and "that the courts are without authority to enforce the Fourteenth Amendment except as Congress empowers them to do so."⁽²⁷⁷⁾ Clearly, the application of strict scrutiny to Congress' enforcement legislation renders the intent of the Framers of the Fourteenth Amendment inapposite; it virtually enables the judiciary to take over the enforcement powers from Congress, which the judiciary should not and cannot do without an appropriate constitutional amendment.

The history of the Fourteenth Amendment also does not lend credence to the Supreme Court's assertion in Adarand that the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment apply in pari materia to the enforcement powers of Congress. Even though the Due Process Clause appears in both the Fifth and Fourteenth Amendments, the Equal Protection Clause is only in the Fourteenth Amendment. This textual incongruence cannot be explained away as a matter of careless drafting.⁽²⁷⁸⁾ Consecutive Congresses that drafted the amendments, using unambiguous language, directed the Fourteenth Amendment against the states, while making the Fifteenth Amendment binding on both states and the federal government.⁽²⁷⁹⁾ The different language of the two amendments demonstrates "that the Reconstruction Congress `knew how to bind their successors when they wanted to. . . . The evidence of the document is thus strong that the decision not to bind Congress by the Equal Protection Clause was at least conscious.'"<sup>(280)</sup> The textual variance of the two amendments was properly taken into account when the Court for the first time faced the issue of the applicability of the Fourteenth Amendment to the federal government in Bolling v. Sharpe.<sup>(281)</sup> While the Court in Bolling held that the equal protection principles prohibited both the federal and state governments from maintaining racially segregated schools, it also clearly marked out the federal-state distinction. Tracing the commonality of the origin of the concepts embodied in the equal protection clause and due process clause--"both stemming from the American ideal of fairness"--the court held that the two are not always "interchangeable phrases," though they sometimes happen to coincide when "discrimination may be so unjustifiable as to be violative of due process."<sup>(282)</sup> Had the Adarand Court acknowledged this analytical symmetry of the two clauses, it would have found the federal affirmative action at issue was not so terribly discriminatory as to be violative of the due process clause. Instead, the Court chose to repeat and rely on the ill-considered statements in later cases that "`[t]his Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.'"⁽²⁸³⁾ Since the statements of the later cases were not supported by any reasoned analysis, they reflect not so much the text or history of the relevant amendments as the usual mood changes of the Court.

To Reclaim the Constitutional Power of Congress

A. Coordinate Power to Interpret the Constitution

Through its own force, strict scrutiny will strip Congress of its constitutional power to enforce the prohibitions against deprivations of rights secured by the Fourteenth Amendment.⁽²⁸⁴⁾ The Constitution explicitly authorizes Congress to enforce the prohibitions by legislation which it considers "appropriate," not what the Supreme Court considers appropriate. The discretion inherent in the enforcement power should enable Congress to exclusively decide whether, enforcement legislation is appropriate, and what kind and at what time it is appropriate to meet any instance of deprivation of Fourteenth Amendment rights and the Supreme Court has no standing to meddle with or abridge that discretion unless there is a clear showing of abuse in its exercise. The Supreme Court seemed to have conceded at least that much in the past.⁽²⁸⁵⁾ Now, in its recent affirmative action and voting rights decisions, the Court is decisively inching closer and closer to supplanting Congress' enforcement discretion. What and where in the Constitution does the Court find authority to aggrandize its power at the expense of the legislative branch?

The source of the Court's authority is none other than the now proverbial dogma of judicial review established by Chief Justice Marshall in Marbury v. Madison.⁽²⁸⁶⁾ The Chief Justice declared that "[i]t is emphatically the province and duty of the judicial department to say what the law is."⁽²⁸⁷⁾ The Marbury doctrine has been the mainstay of the Court's constitutional power for nearly two centuries. Its legitimacy was fostered, in no small measure, by the Hamiltonian notion that the judiciary is the "weakest of the three departments of power" in the federal government, "least dangerous to the political rights" and having "neither force nor will, but merely judgment."⁽²⁸⁸⁾ Moreover, the Marshall Court deflected any criticism against its self-declared power of review by maintaining a non-confrontational stance that it "merely found and declared law; it did not make law."⁽²⁸⁹⁾ However, recently the Court has boldly restated the Marbury doctrine in extremely strident terms. In 1958 the Court asserted in Cooper v. Aaron⁽²⁹⁰⁾ that "`[Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.'"<sup>(291)</sup> The Court's faith in its own supremacy has grown to such mythical proportions that it now even equates judicial supremacy with the ideals and value systems of the American people.<sup>(292)</sup> For instance, in Planned Parenthood of Southeastern Pennsylvania v. Casey,<sup>(293)</sup> the Court asserted that the American people's "belief in themselves [as a `people who aspire to live according to the rule of law'] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals."⁽²⁹⁴⁾ This self-anointed preeminence of the Court among the coordinate branches of federal government has never been tested in the crucible of American public opinion.

As Professor Michael Paulsen convincingly argued, "despite its present-day status as seemingly unchallengeable orthodoxy, [judicial supremacy] has surprisingly little textual support, thin historical support, and contradicts the core political theory of The Federalist as well as the deep structural feature of independent, co-equal branches at the heart of the framers' design."⁽²⁹⁵⁾ To begin with, even Marbury never suggested judicial supremacy or its exclusive interpretive powers. Marbury readily acknowledged the fact that "the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature."⁽²⁹⁶⁾ The constitutional scheme of government consisting of three coordinate branches, each possessing carefully allocated powers, refutes the very idea of having one branch defining the parameters of the powers of the other two branches. Because the Constitution limits the powers of courts and the Legislature alike, "it may be . . . absurd . . . to allow courts to set the limits" of the legislative powers, especially "because courts are not subject to electoral control."⁽²⁹⁷⁾

In the ratification debate, the Anti-Federalists alleged that the constitutional provisions for judicial review portended the danger of judicial supremacy over the legislative branch. Alexander Hamilton dismissed the allegations as mere "imagination"⁽²⁹⁸⁾ or "a phantom."⁽²⁹⁹⁾ James Madison, stressing the coordinancy of the three branches of the government and their duty to support the Constitution, stated that "each [branch] must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it."⁽³⁰⁰⁾ It was clear that the Constitution would not have been ratified if judicial supremacy was perceived as part of the constitutional scheme.⁽³⁰¹⁾

In the post-ratification era, several prominent elected leaders of the nation rebuffed claims of exclusive interpretive authority of the judiciary. Defying the judiciary, President Thomas Jefferson not only halted prosecution under the Sedition Act of 1798, which he thought unconstitutional, but also pardoned all those who had been convicted under the statute by the previous administration of John Adams. Justifying his actions, Jefferson maintained that "nothing in the Constitution has given [the judges] a right to decide for the Executive, more than to the Executive to decide for them,"⁽³⁰²⁾ and that if "`the judges [have] the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, [that] would make the judiciary a despotic branch.'"<sup>(303)</sup> Likewise, President Andrew Jackson asserted his constitutional authority and responsibility to make an independent judgment about the constitutionality of legislation when he vetoed a bill which he believed unconstitutional despite the contrary opinion of the Supreme Court.<sup>(304)</sup> In his veto message, President Jackson stated that "`[t]he opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges'" and that "`[t]he authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.'"⁽³⁰⁵⁾

President Lincoln's critical response to the Dred Scott⁽³⁰⁶⁾ decision is highly pertinent to the Supreme Court's modern claim of interpretive superiority. During his senatorial campaign, Lincoln vowed to vote for abolition of slavery if the matter came before the Senate.⁽³⁰⁷⁾ He followed up on the theme in his first inaugural address. Underscoring the need for functional independence of all three coordinate branches, he stated that "`if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made,. . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.'"⁽³⁰⁸⁾

The Constitution requires the President and the members of Congress to independently evaluate the constitutionality of their actions. President Andrew Jackson invoked the Oath Clause of the Constitution to establish his co-equal interpretive authority.⁽³⁰⁹⁾ Likewise, the members of Congress have repeatedly acknowledged their duty to independently interpret the Constitution in the performance of their legislative functions.⁽³¹⁰⁾ Senator Sam Ervin, for instance, stated: "`Every Congressman is bound by his oath to support the Constitution, and to determine to the best of his ability whether proposed legislation is constitutional when he casts his vote in respect to it.'"⁽³¹¹⁾ It is not entirely unreasonable to think that responsible members of Congress like Sam Ervin have been conscientious in complying with the Constitution and that the claims of interpretive superiority of the Supreme Court have not been persuasive enough to make them wanton constitutional derelicts. But some scholars think that Congress, by the second half of the twentieth century, abdicated its power to independently determine constitutional questions and consciously, for the sake of convenience and expediency, ceded that power to the judiciary.⁽³¹²⁾ A decidedly skeptical Professor Paul Brest concluded that "[i]f Congress ever had a strong tradition of determining the constitutionality of its enactments, it no longer exists today."⁽³¹³⁾

B. Congress Breaks With the Past

Even if Congress has been lax in the past about assuming its proper role in independently deciding constitutional questions, that may no longer be the case. In the area of statutory interpretation between 1967 and 1990, Congress overturned 220 lower court rulings and 124 Supreme Court decisions.⁽³¹⁴⁾ According to one scholar, "this is merely the tip of the iceberg" since numerous other court interpretations are overturned "in omnibus reconciliation acts and in periodic program reauthorizations."⁽³¹⁵⁾ The most far-reaching congressional legislation overruling Supreme Court decisions were recently enacted in the areas of employment discrimination, voting rights and federal assistance.⁽³¹⁶⁾ In recent years, Congress has also emerged as an active and co-equal participant in the process of constitutional interpretation. Members of Congress have been increasingly reluctant to "`roll over and accept'"⁽³¹⁷⁾ Supreme Court decisions that they thought constitutionally incorrect. Their reactions to some of the Court's decisions on major arenas of public policy have been trend-setting and phenomenal. To overturn the decision in McCleskey v. Kemp,⁽³¹⁸⁾ in which the Supreme Court ruled that racially biased imposition of the death penalty was not violative of the Equal Protection Clause, Senator Edward Kennedy introduced a bill, the Racial Justice Act,⁽³¹⁹⁾ to carry out the Senate's "responsibility to fulfill the Constitution's promise of equal protection of the laws" and elimination of race discrimination in capital punishment.⁽³²⁰⁾ Again, to counteract the Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey⁽³²¹⁾ which permitted states, without having to show a compelling state interest, to regulate abortion so long as the regulation did not impose an undue burden on women seeking abortion, the Freedom of Choice Act⁽³²²⁾ (FOCA) was introduced in both chambers of Congress. FOCA sought, through Congress' affirmative power both under the Commerce Clause and the Fourteenth Amendment, to require states to demonstrate that "laws restricting the right of a woman to choose to terminate a pregnancy were the least restrictive means available to achieve a compelling State interest."⁽³²³⁾ Though the bill was favorably reported out by the Labor and Human Resources Committee of the Senate, its ultimate passage was blocked by certain extraneous events.⁽³²⁴⁾

Congress' most remarkable exercise of its constitutional interpretive authority occurred in 1993, when it enacted the Religious Freedom Restoration Act (RFRA)⁽³²⁵⁾ specifically to overrule the Supreme Court decision in Employment Division v. Smith.⁽³²⁶⁾ In Smith, two employees of a private drug rehabilitation facility were fired and denied unemployment benefits on the ground that they ingested peyote during religious ceremonies in violation of the state's controlled substance law. The Supreme Court, dismissing a constitutional challenge by the employees under the Free Exercise Clause of the First Amendment, held that facially neutral laws of general applicability that burden the exercise of religion require no compelling justification to pass constitutional muster. Justice Scalia, writing for the majority, declined to apply the strict scrutiny standard used by the Court in prior free exercise cases.⁽³²⁷⁾ The purposes of RFRA were to repudiate Smith's restrictive interpretation of the Free Exercise Clause, "to restore the compelling interest test" and "to guarantee its application in all cases where free exercise of religion is substantially burdened."⁽³²⁸⁾ Citing Katzenbach v. Morgan⁽³²⁹⁾ and Ex parte Virginia,⁽³³⁰⁾ Congress asserted that its "power under section 5 to enforce the 14th amendment includes congressional power to enforce the free exercise clause" and that RFRA falls squarely within Congress' Section five enforcement power.⁽³³¹⁾

What made the enactment of RFRA possible was the overwhelming support it received from a legion of interest groups and members of both the House and the Senate.⁽³³²⁾ President Clinton declared that the Act, in the "tradition of our Nation's founders," embraced the abiding principle of religious liberty.⁽³³³⁾ Constitutional scholars are still debating the issue of RFRA's constitutionality. Though, as can be expected, some who adhere to the conventional understanding of the Marbury doctrine may have misgivings,⁽³³⁴⁾ many scholars readily recognize the inherent constitutional power of Congress to enact RFRA⁽³³⁵⁾ as "the most important congressional action with respect to religion since the First Congress proposed the First Amendment."⁽³³⁶⁾ It is indeed a landmark in the constitutional law landscape of Congress' interpretive authority.

The most enduring effect of RFRA is that it quietly unraveled the myth that judicial supremacy is indispensable to avoid constitutional calamity. Judicial supremacists relentlessly portray the spectre of legal anarchy that they believe will ensue from interpretive parity of the coordinate branches of the federal government. They primarily argue, and the public has come to believe, that the role of the Supreme Court as the ultimate arbiter of constitutional questions is necessary to maintain respect and obedience to the rule of law.⁽³³⁷⁾ The aura of infallibility of the Court's pronouncements emanates from the "cult of the robe"⁽³³⁸⁾--the notion that the Court is a neutral and non-political institution with special competence to discern the intricacies of law. Judicial supremacists also contend that interpretive parity might leave us "with a cacophonous Constitution--a constitution that speaks with many mouths simultaneously to the populace" and confusing them concerning "the construction that one is legally obligated to follow."⁽³³⁹⁾ RFRA certainly did not produce any of the predicted dire consequences. Congress' construction of the First Amendment remains the authoritative rule of law, and it is not likely to create any ambiguity or confusion so long as the Supreme Court refrains from asserting its interbranch superiority.⁽³⁴⁰⁾

Even if judicial supremacists' advocacy for judicial primacy may make sense in other contexts, they would have serious difficulties in making a credible case against congressional autonomy in interpreting the scope of its enforcement power under the Fourteenth Amendment. The primary difficulty is that, in the context of Congress' enforcement power, the idea of judicial primacy is not cohesive with Marbury's theory of judicial review. The maximum judicial authority claimed in Marbury was the authority to say what the law is, and not the authority to say what the law ought to be. By virtue of the conciseness of its language and clarity of its content, the law of the enforcement provision of the Fourteenth Amendment is self-explanatory. It authorizes Congress, by means of appropriate legislation, to enforce the rights secured by Section one of the Fourteenth Amendment. No further elucidation by the judiciary is needed or called for. "It is not said that the judicial power of the nation may be exerted for the enforcement of that amendment."⁽³⁴¹⁾

C.  General Unreviewability of Enforcement Discretion

The drafters' choice of the words "enforcement by appropriate legislation" in the Fourteenth Amendment was no accident. The drafters of the Amendment could have used, for instance, the familiar language of the Necessary and Proper Clause--"carry into execution"--if what they wanted to accomplish was to empower Congress to enact normal implementing legislation.⁽³⁴²⁾ In fact an early draft of the Amendment did consider that alternative. A joint resolution proposing the Amendment read, in part, as follows:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.⁽³⁴³⁾

The drafters of the Amendment finally abandoned the language in favor of the current version because they wanted the provision to reflect, as clearly as possible, its declared objective to grant "to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the . . . Constitution"⁽³⁴⁴⁾--"to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights."⁽³⁴⁵⁾

The power created by the drafters couched in this extraordinary format, conjoins the power to legislate and the power to enforce, and it is identical, both in language and purpose, to the power of Congress under the Thirteenth Amendment. As was explained to the Reconstruction Congress, in the enforcement provision of the Thirteenth Amendment, "[t]he word `appropriate' appeals to legislative discretion, and the word `enforce' implies such compulsory measures as Congress may deem `appropriate' for the purpose of ridding the country of every vestige of slavery, in form and in fact."⁽³⁴⁶⁾ Congressional debate preceding the adoption of the Fourteenth Amendment clearly indicates that the drafters intended Congress to be the primary, if not the sole, repository of the enforcement power, and not the judicial or executive branch.⁽³⁴⁷⁾ Indeed, the drafters were deliberately steering away the enforcement responsibility from the federal courts that failed "to redress the great wrong which has been practiced . . . under the authority of State laws, denying to citizens therein equal protection or any protection in the rights of life, liberty, and property."⁽³⁴⁸⁾

The Supreme Court has in the past recognized the truism that the congressional power under the Fourteenth Amendment is "unique," even though it has yet to articulate its full scope and potential.⁽³⁴⁹⁾ The Court, without hesitation, accepted the fact that the power so "fundamentally altered the balance of state and federal power struck by the Constitution"⁽³⁵⁰⁾ that it enabled Congress even to abrogate the States' sovereign immunity guaranteed by the Eleventh Amendment.⁽³⁵¹⁾ As early as 1880 the Court concluded that the securing and viability of the rights guaranteed by the Amendment will be dependent on the congressional power and that "[s]ome legislation is contemplated to make the amendments fully effective."⁽³⁵²⁾ As noted earlier, the Court has settled on a construction that treats Congress' Fourteenth Amendment power as co-extensive with its power under the "Necessary and Proper Clause."⁽³⁵³⁾

The Supreme Court's recognition of the uniqueness of the congressional power under the Amendment came drip by drip⁽³⁵⁴⁾ and its pronouncements in this regard, with very few exceptions, seemed to tilt toward the legislative strand of the power. The Court has yet to accord proper weight to the enforcement strand of Congress' Section five power. The Court's tendency to analogize Congress' Section five power to its power under the Necessary and Proper Clause is the unmistakable indication of such a tilt. To understand the significance of the analogy, one needs notice that, first, the Necessary and Proper Clause is only complementary to the powers enumerated under Section 8 of Article I of the Constitution, none of which contains an enforcement component;⁽³⁵⁵⁾ and second, the principles of judicial review of the exercise of the enumerated powers are devoid of any consideration for enforcement discretion.⁽³⁵⁶⁾ The recent judicial foray into Congress' power under the Fourteenth Amendment, with the menacing threat of strict scrutiny, can be attributed to the Supreme Court's virtual disregard of the enforcement strand of Congress' Section five power.

The quintessence of law enforcement, regardless of whether it be by a prosecutor, administrative agency or Congress, is discretionary decisionmaking by the enforcer. Determinations as to when and how enforcement action is to be taken, the appropriate means to achieve the enforcement goals, and the effective sanctions to be imposed, are the hallmarks of enforcement discretion. In the archetypical case of criminal law enforcement, "`the exercise of prosecutorial discretion is not subject to judicial review'"⁽³⁵⁷⁾ except in unusual circumstances such as racial discrimination in prosecutorial decisionmaking.⁽³⁵⁸⁾

Enforcement decisions of an administrative agency would "`not be overturned in the absence of a patent abuse of discretion.'"⁽³⁵⁹⁾ Agency decisions not to take enforcement action are presumptively unreviewable.⁽³⁶⁰⁾ In the much quoted words of Justice Scalia, "in designing the most appropriate means to enforce the law, agency discretion is at its zenith and judicial power at its nadir."⁽³⁶¹⁾

In the exercise of its powers under the Fourteenth Amendment, Congress should be entitled to at least as much enforcement discretion as is available to an administrative agency, and as much deference from the reviewing courts as is customarily given to any law-enforcing entity. In the past, the Supreme Court seemed to recognize Congress' enforcement discretion as inherent in its Section five power. In Ex parte Virginia,⁽³⁶²⁾ the Court correctly expounded Congress' enforcement discretion when it ruled that under the Fourteenth Amendment the judicial power did not "extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed" and that the enforcement authority belonged exclusively to Congress.⁽³⁶³⁾ Likewise, in Katzenbach v. Morgan,⁽³⁶⁴⁾ the Court stated that Section five authorized Congress "to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment."⁽³⁶⁵⁾ But the Court's recent decisions on affirmative action⁽³⁶⁶⁾ and voting rights⁽³⁶⁷⁾ disregard the enforcement component of Congress' Section five power.

In some of its pronouncements, the Court even seemed to exhibit uninhibited disdain for the very idea of congressional enforcement discretion. For instance, "[t]he Court has recently gone out of its way to state that, in `enforcing' the fourteenth amendment, Congress has no more power than do state legislatures to `validate a law that denies the rights guaranteed by the Fourteenth Amendment.'"⁽³⁶⁸⁾ Justice O'Connor, writing for the Court in Mississippi University for Women v. Hogan,⁽³⁶⁹⁾ made this latter statement in response to an argument that Congress has the constitutional authority to exempt single-sex educational institutions from the definition of sex discrimination under Title IX of the Education Amendment of 1972,⁽³⁷⁰⁾ legislation enacted in furtherance of Congress' enforcement power. The Justice failed to conceive the possibility of Congress making an enforcement decision as to whether the exemption of single-sex institutions would entail a denial of the rights guaranteed by the Amendment⁽³⁷¹⁾--a possibility she readily contemplated in the Croson case.⁽³⁷²⁾ Recall that in Croson the Justice stated that "[t]he power to `enforce' may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations."⁽³⁷³⁾

The Supreme Court's determination in Adarand Constructors⁽³⁷⁴⁾ to review race-conscious affirmative action programs "imposed by whatever federal, state, or local governmental actor"⁽³⁷⁵⁾ under strict scrutiny should be considered a calculated repudiation of Congress' enforcement discretion. The very idea of equating Congress with state and local government entities that have no enforcement role under the equality provisions of the Constitution makes Congress' enforcement discretion irrelevant. Whether enacted under the Fifth Amendment or the Fourteenth Amendment, federal legislation has national consequences and necessitates federal enforcement against state and local government entities. As described elsewhere in this Article, strict scrutiny requires Congress to demonstrate, to the satisfaction of a federal district judge, the "need" for enforcement, the intensity of the interest to be served, and even the true "motivation"⁽³⁷⁶⁾ for the enforcement action--factors that typically form the core of enforcement discretion. Strict scrutiny is fundamentally different from, and less deferential than, the patent abuse of discretion standard normally applied to review enforcement discretion.

No one will dispute that the judiciary has the power and responsibility to give effect to any constitutional or statutory limitations that circumscribe enforcement discretion. The Fourteenth Amendment contains no textual limitation on Congress' enforcement power. But the Supreme Court apparently derives an implied limitation from Section one of the Amendment. The limitation would restrict congressional action that might diminish the equality rights of individuals. The validity of such a limitation is doubtful for a number of reasons. First, it underestimates Congress' responsibility to protect individuals' personal rights to equality. The Court has reminded itself in the past that it "should not forget that `legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.'"⁽³⁷⁷⁾ Second, the Court unjustifiably assumes that Congress is devoid of co-equal responsibility to interpret the substantive content of the Equal Protection Clause and to decide for itself, without obtaining advance pre-clearance from the judiciary, whether and to what extent its enforcement action might cause deprivation of individuals' personal rights to equality.⁽³⁷⁸⁾

Third, imposition of court-invented implied limitation on enforcement discretion would hamper the ability of our national Legislature to deal with society-wide problems of inequality and discrimination,⁽³⁷⁹⁾ because it might be difficult to devise remedies and solutions for these problems without having adverse incidental effect on individual equality. The statutory scheme involved in Adarand Constructors that provided financial incentive to prime contractors to hire subcontracting firms certified, on the basis of certain race-based presumptions, as owned or controlled by socially and economically disadvantaged individuals, is an excellent illustration. Though the scheme was a catch-up mechanism designed to remove the entrenched practice of racial exclusion and provide equal access to minorities in public contracting, "some members of the historically favored race [were] hurt by that remedial mechanism, however innocent they may be of any personal responsibility for any discriminatory conduct."⁽³⁸⁰⁾ Finally, because the drafters of the Amendment contemplated no limitation on congressional enforcement discretion, the public interest would be better served if matters of abuse in its exercise are left to the judgment of the electorate.⁽³⁸¹⁾ As the Supreme Court once stated, the "Constitution presumes that, absent some reason to infer antipathy, even improvident decision will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted."⁽³⁸²⁾ The Supreme Court's statement correctly reflected the faith of the Founding Fathers in the people's capacity to correct abuses of constitutional power.⁽³⁸³⁾

Conclusion

In applying strict scrutiny to race-based state redistricting plans, the Supreme Court has "struck out into a jurisprudential wilderness that lacks a definable constitutional core and threatens to create harms more significant than any suffered by the individual plaintiffs challenging [those plans]."⁽³⁸⁴⁾ The same can be said about its employment of strict scrutiny to strike down race-conscious affirmative action of state and local governments.⁽³⁸⁵⁾ But, by stretching its strict scrutiny review to federal race-conscious affirmative action, the Court teeters on the edge of a quicksand in the wilderness. Either the Court should make a retreat or Congress should step in on a rescue mission.

There could hardly be a congressional racial classification that would be completely free of the enforcement concerns of the Fourteenth Amendment. Enforcement of the Fourteenth Amendment is the constitutional responsibility of Congress, not of the courts. That is what the Constitution says, and no amount of interpretive sophistry can change its plain and unambiguous text. Review of congressional racial classifications under strict scrutiny deprives Congress of its enforcement discretion and the nation of its ability to deal with problems of racial discrimination. The Supreme Court is not, and will never be, as institutionally competent as Congress to devise and implement measures to remedy society-wide discrimination and conditions of inequality that the Court readily acknowledges to exist.⁽³⁸⁶⁾

The renowned capacity of strict scrutiny to produce preordained negative outcomes may provide a measure of certitude to judicial review of racial classifications, but, because of its subjective and indeterminate nature, the standard cannot assure certainty of application by non-judicial actors. If the justices are unable to forge a consensus on the scope and meaning of the pivotal requirements of the strict scrutiny standard, it is insulting to the national legislature to be asked to comply with it.

The viability of strict scrutiny rests on the hypothesis that it is a fool-proof device to detect illegitimate racial prejudice or stereotypes that may lurk beneath governmental race-conscious measures. The hypothesis is absurd in the context of congressionally established affirmative action programs that are never motivated by racial animus, prejudice or stereotypes. Such programs are invariably designed to compensate victims of racial discrimination for its lingering effect.⁽³⁸⁷⁾ In the unlikely event that a congressional measure animated by racial prejudice or bigotry masquerades as something else, it will be caught red-handed by the media and other Congress-watchers and the culprits will be eventually punished in the court of public opinion. Judicial policing will be an unnecessary and a least desirable means to deter such aberrational congressional behavior.

As the history of its evolution demonstrates, strict scrutiny has always been outlandish and inhospitable to racial and ethnic minorities. The standard, as applied by the Supreme Court in the recent affirmative action and legislative redistricting cases, appears to the vast majority of racial minorities as a mirage that presents a distorted image of society or a facade that conceals the extremist values of five justices. Such perceptions are fortified by the Court's willingness to entertain challenges to governmental measures that disadvantage members of the white majority without requiring the challengers to show any palpable injury as mandated by the Court's general litigation rules.⁽³⁸⁸⁾ According to an objective observer, the Court's strict scrutiny regime has clearly established a dual system of equal protection review--the less favorable standard applies to racial minorities and the favorable standard applies to the white majority.⁽³⁸⁹⁾ One scholar recently even accused the Court of "engag[ing] in intentional racial discrimination."⁽³⁹⁰⁾ These perceptions are indicative of the erosion of the confidence of minorities and a significant number of constitutional scholars in the integrity and impartiality of the Supreme Court in making race-conscious decisions--a condition that is not conducive to the long-term interests of the judiciary and the rule of law.⁽³⁹¹⁾

Strict scrutiny is too vacuous a standard to advance the cause of racial equality in American society. Instead of achieving the goal of a color-blind society, as its adherents ostensibly envision, strict scrutiny has revealed its potential to emerge as a racially divisive and jurisprudentially retrogressive formula that undermines the letter and spirit of the Fourteenth Amendment. Now it dangerously propels the Court into the domain of the Amendment's enforcement that the Constitution has set aside exclusively for Congress. That leaves Congress with no option but to take a stand on overriding constitutional principles. Congress should assert its co-equal interpretive authority to determine the boundaries of its own power under the Fourteenth Amendment. The Constitution demands, and the Nation expects, nothing less from the elected representatives of the people.

Race-conscious affirmative action is currently a subject of intense national debate, and the political branches of our national government have been exploring the desirability of streamlining or abolishing such programs at the federal level. The decision as to whether race-based remedial programs are appropriate means to enforce the Fourteenth Amendment is a decision that the Constitution expressly entrusts to Congress. It is not a decision for the judiciary to make. The concerted effort of five Supreme Court justices to repeal all federal race-based remedial programs is tantamount to an attempt to repeal the enforcement provision of the Amendment by judicial fiat. It is a blatant extra-constitutional use of judicial power, and strict scrutiny or any other ta