Pp. According to JUSTICE STEVENS, our view of consistency "equate[s] remedial preferences with invidious discrimination," post, at 6, and ignores the difference between "an engine of oppression" and an effort "to foster equality in society," or, more colorfully, "between a `No Trespassing' sign and a welcome mat," post, at 2, 4. With Croson, the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments.

[ Unlike the 1977 set-asides, the current preference is designed to overcome the social and economic disadvantages that are often associated with racial characteristics. It is therefore *257 quite wrong for the Court to suggest today that overruling Metro Broadcasting merely restores the status quo ante, for the law at the time of that decision was entirely open to the result the Court reached.

U.S. 267, 318

8

  With respect, we believe his criticisms reflect a serious misunderstanding of our opinion. [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) Adarand Constructors, Inc. v. Skinner, 790 F. Supp. Nothing in the record suggests The various opinions in Frontiero v. Richardson, The 1977 Act applied entirely to the award of public contracts, an area of the economy in which social relationships should be irrelevant and in Id., at 28-31.   448 Pp. Broadcasting, upheld two federal race based policies against a Fifth [11] This is no accident. Mountain Gravel awarded the subcontract to Gonzales, despite Adarand's low bid, and Mountain Gravel's Chief Estimator has submitted an affidavit stating that Mountain Gravel would have accepted Adarand's bid, had it not been for the additional payment it received by hiring Gonzales instead. the formulas of analysis articulated in such cases as [Bakke]." of the laws" the Fourteenth Amendment has promised since 1868. The Court did not address the view, expressed in

No beneficiaries of the specific program under attack today have challenged its constitutionality—perhaps because they do not find the preferences stigmatizing, or perhaps because their ability to opt out of the program provides them all the relief they would need. We also disagree with JUSTICE STEVENS that Justice Stewart's dissenting opinion in Fullilove supports his "novelty" argument, see post, at 19, and n. 13. (1989); see also Shurberg Broadcasting of Hartford, Inc. v. FCC, 876 F.2d 902, 915, n. 16 (CADC 1989) (opinion of Silberman, J.) But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.

U.S. 241, 286 Petitioners were seeking to win a bid from the US Department of Transportation for a highway project. 347 U.S., at 500 Id., at 291. Unlike the 1977 Act, the present statutory scheme does not make race the sole criterion of eligibility for participation in the program. But two decisive distinctions separate those two cases.

. 323 U.S., at 233 Ante, at 23-25. individualized inquiry into the economic disadvantage of every participant, see 13 CFR 124.106(a) (1994), whereas the DOT's regulations implementing STURAA 106(c) do not require certifying authorities to make such individualized inquiries, see 49 CFR 23.62 (1994); 49 CFR pt. 323 U.S. 214 (plurality opinion of Powell, J. The current program contains another forward-looking component that the 1977 set-asides did not share. The Court's concept of stare decisis treats some of the language we have used in explaining our decisions as though it *256 were more important than our actual holdings. keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country's law and practice.

. . See also Jenkins, ante, at 113 (O'Connor, J., concurring) ("Congress . The majority's concept of "consistency" ignores a difference, fundamental to the idea of equal protection, between oppression and assistance. In enacting affirmative-action programs, a legislature intends to remove obstacles that have unfairly placed individuals of equal qualifications at a competitive disadvantage. As with other phases of the statutory policy of encouraging the formation and growth of small business enterprises, this program is intended to facilitate entry and increase competition in the free market. must be narrowly tailored to further that interest.

); id., at 691 (Stewart, J., concurring in judgment); id., at 692 (Powell, J., concurring in judgment). [ Ante, at 225-226. Any of the three routes to such certification described above—SBA's 8(a) or 8(d) program, or certification by a State *210 under the DOT regulations—would meet that requirement. We recalled that the opinions of Chief Justice Burger and Justice Powell in Fullilove had "explained that deference was appropriate in light of Congress' institutional competence as the National Legislature, as well as Congress' powers under the Commerce Clause, the Spending Clause, and the Civil War Amendments." (Marshall, J., concurring in judgment).   It then upheld the program under that test, adding at the end of the opinion that the program also "would survive judicial review under either `test' articulated in the several Bakke opinions." . If the 1977 program of race-based First, this is not an argument that petitioner Adarand, a white-owned business, has standing to advance. This Court clearly stated that principle in Croson, see 488 U. S., at 493-494 (plurality opinion); id., at 520-521 (Scalia, J., concurring in judgment); see also Shaw v. Reno, 509 U.S. 630, 643 (1993); Powers v. Ohio, 499 U.S. 400, 410 (1991). be deprived of life, liberty, or property, without due process of law." The principle of consistency explains the circumstances in which the injury requiring strict scrutiny occurs. Id., at 666. Footnote 14   The Court's application of that general principle to the case before it, and the resulting imposition on the Federal Government of an obligation equivalent to that of the States, followed as a matter of course. To pretend . 240 (1992). would be unthinkable that the same Constitution would impose a lesser duty In the eyes of government, we are just one race here. off. It is less clear, however, that the future use of subcontractor compensation clauses will cause Adarand "imminent" It is another thing entirely to say that Congress' institutional competence and constitutional authority entitles it to no greater deference when it enacts a program designed to foster equality than the deference due a State legislature. Footnote 3 And JUSTICE STEVENS himself has already explained in his dissent in Fullilove why "good intentions" alone are not enough to sustain a supposedly "benign" racial classification: "[E]ven though it is not the actual predicate for this legislation, a statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified in some respect that is identified purely by their race. The program we upheld in Fullilove required that 10% of the federal grant for every federally funded project be expended on minority business enterprises. D, App. Our past practice in similar situations supports our action today. individuals as the SBA has defined those terms. but has been prepared by the Reporter of Decisions for the convenience . L. 100-17, 101 Stat. It also did not address the question of narrow tailoring in terms of our strict scrutiny cases, by asking, for example, whether there was "any consideration of the use of *238 race-neutral means to increase minority business participation" in government contracting, Croson, supra, at 507, or whether the program was appropriately limited such that it"will not last longer than the discriminatory effects it is designed to eliminate," Fullilove, supra, at 513 (Powell, J., concurring).

extent that they serve important governmental objectives within the power of Congress and are judicial scrutiny." (1988); Small Business Problems: Hearings before the House Committee on Small Business, 100th Cong., 1st Sess. (1989), sufficient to justify surpassing the congressional objective. The three propositions undermined by Metro Broadcasting all derive from the basic Copyright © 2020 by eLaws. , 29]

Karst, The Fifth Amendment's Guarantee of Equal Protection, 55 N. C. L. Rev. By adopting intermediate scrutiny as the standard of review for congressionally mandated "benign" racial classifications, Metro Broadcasting departed from prior cases in two significant respects. In such a situation, "special justification" exists to depart from the recently decided case. ", Argued the cause for the federal respondent. , 15] [ . -317 (1986) (STEVENS, J., dissenting). The District Court granted respondents summary judgment. Although both Amendments require the same type of analysis, see Buckley v. Valeo, 424 U.S. 1, 93 [(1976)], the Court of Appeals correctly stated that the two protections are not always coextensive. To illustrate the point, consider our cases addressing the Federal Government's discrimination against Japanese Americans during World War II, Hirabayashi v. United States,