The Language of Argument

3 6 6

C H A P T E R 1 8 ■ L e g a l R e a s o n i n g

In contrast, Brennan argued for a new interpretation of the equal

protection clause. On this new interpretation, strict scrutiny would still be

applied to most racial classifications, but strict scrutiny need not be passed

when the state uses a racial classification to serve a benign, remedial purpose.

The purpose of a racial classification is benign when it does not stigmatize

anyone and was not adopted out of any discriminatory motive, and it is

remedial if the state used the racial classification because the state found

that, without the racial classification, an underprivileged group would

suffer harm or differential impact because of past discrimination in society

at large.

Powell criticized Brennan’s conditions on the grounds that the notion of

stigma is too vague and that it is not groups but individuals who are pro-

tected by the equal protection clause. Brennan responded by distinguishing

stigma from other harms and by emphasizing the importance of groups. The

heart of the controversy was, thus, about the conditions under which to ap-

ply strict scrutiny.

Regents of the University of California v. Bakke

(438 U.S. 268, 1978)

Excerpts from Justice Powell’s opinion:

Racial and ethnic classifications... are subject to stringent examination

without regard to... additional characteristics. We declared as much in the

first cases explicitly to recognize racial distinctions as suspect: “... [A]ll legal

restrictions which curtail the rights of a single racial group are immediately

suspect. That is not to say that all such restrictions are unconstitutional. It is

to say that courts must subject them to the most rigid scrutiny” (Korematsu,

323 U.S. 214 at 216 [1944]). The Court has never questioned the validity of

those pronouncements....

Petitioner urges us to adopt for the first time a more restrictive view of

the Equal Protection Clause and hold that discrimination against members

of the white “majority” cannot be suspect if its purpose can be characterized

as “benign.” The clock of our liberties, however, cannot be turned back to

1868. It is far too late to argue that the guarantee of equal protection to all
      persons permits the recognition of special wards entitled to a degree of pro-
      tection greater than that accorded others.
      Moreover, there are serious problems of justice connected with the idea of
      preference itself. First, it may not always be clear that a so-called preference
      is in fact benign. Courts may be asked to validate burdens imposed upon
      individual members of particular groups in order to advance the group’s
      general interest.... Nothing in the Constitution supports the notion that

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