Supreme Court Dispatches

Little Court of Horrors


Adarand Constructors v. Minetais the perfect case for argument on Halloween. Not only is Adarand the third sequel in an 11-year old-fight about affirmative action, referred to as “Adarand III”—as in Scream III, Halloween III, or I Know What You Did Last Presidential Election III. It’s also a perfect Halloween offering because it comes before the court in disguise—it’s a lousy dog of a case, all dressed up as a landmark constitutional issue.

In 1989, the contractor on a Department of Transportation highway in Colorado awarded the subcontract to build guardrails to a company other than Adarand Construction, despite Adarand’s lowest bid. Why? Because under DOT rules, contractors were rewarded for subbing out to so-called Disadvantaged Business Enterprises. Gonzalez Construction, a DBE, was awarded the government contract, and Adarand sued the DOT in 1990.

The procedural history of this case is twisty and steep: In 1992, the federal district court ruled against Adarand, applying forgiving “intermediate scrutiny” to review the government’s affirmative-action program. The 10th Circuit Court of Appeals upheld that decision in 1994, leading to Adarand’s first trip to the U.S. Supreme Court in 1995 (“ Adarand I”). The high court, splitting 5-4, objected to the lower court’s use of intermediate scrutiny and remanded the case back for review under strict scrutiny (i.e., “please find the attached government program to be unconstitutional”). Not surprisingly, the district court found the DOT affirmative-action program unconstitutional in 1997, but while that appeal was pending, Congress revised the DOT regulations, leading the 10th Circuit to find the case moot in 1999. The Supreme Court took the case again in 2000, disagreed that it was moot in Adarand II,and remanded again with instructions to decide the case on the merits. The 10th Circuit, apparently still not in receipt of the please-find-unconstitutional memo, found the new DOT affirmative-action regulations to be constitutional in 2000, even using strict scrutiny. So the Supreme Court, unable to yank the life support, granted cert again on two very narrow questions: Did the 10th Circuit misapply strict scrutiny, and is the current DBE program sufficiently narrowly tailored?

The court refuses to take responsibility for the fact that Adarand is a lousy dog.But the Supremes chose the costume when they granted cert on a loser set of facts last spring. Yet today the justices roll their tanks all over counsel for daring to come before them as a dog dressed as a landmark constitutional case.

The court spends most of the morning trying to find different ways to ask Adarand’s counsel, William Pendley, how he can possibly have standing to bring this lawsuit back to them if his client hasn’t been disadvantaged by the new DOT regulations. “What you’re complaining about is over and gone,” says Justice Ginsburg. Breyer puts it: “You probably didn’t have standing then; you probably do have standing now. But what do we do? Do we send it back to the lower court, or DIG [deny as improvidently granted] the whole thing?” “What are we supposed to do now, please?” begs O’Connor of Solicitor General Ted Olson.

Pendley’s answer to this line of questions is twofold. One, he argues that even if Adarand doesn’t have standing to challenge the revised DOT program, the company is still the object of unconstitutional reverse discrimination. His second argument is that, like Capt. Ahab, Adarand has been chasing the great white whale of “reverse discrimination” (or, more accurately, the great whale-of-color), across the legal landscape for 11 years now. Every time Adarand sues for discrimination, the DOT changes its regulations, and Adarand loses standing to sue. Pendley, who has represented Adarand since 1989, is frustrated that Congress, the DOT, and the lower courts keep tinkering and tweaking what he terms the affirmative-action“tool kit” without acknowledging that it’s unadorned racism in violation of the Constitution.

Ted Olson is also in costume today. He’s dressed as Seth Waxman, Clinton’s solicitor general. Olson and the Bush administration find themselves in the bizarre position of defending governmental affirmative action, and Olson makes a heart-wrenching case for maintaining the DOT programs favoring minority contractors because of “racial discrimination on the basis of skin and nationality.”

But what Olson mostly wants today is for this case to go away. He is at his most vigorous as he challenges Adarand’s standing to sue, insisting the DOT has not used or employed its race-conscious provisions in Colorado and that Adarand hasn’t been affected by the revised program because it has yet to submit the low bid on a contract.

Some of the roughest questions for Olson come from his buddies. Scalia, Rehnquist, and Kennedy are upset that although the DOT regulations have changed, the actual contract forms being used still contain language urging minority preferences. Olson tries to put them off by explaining that the old forms are simply carryovers, that the language is never enforced, and that contractors are aware of that fact. Scalia is unmoved. Kennedy hisses: “Do you think if these contracts required racial discrimination, we’d say there’s no standing?” For the cost of printing up a few thousand new forms, the government could have saved themselves this entire appeal.

The court’s conservative wing also has a little fun with Olson on the validity of the revised regulations, which still offer incentives to hire companies with a “social or economic disadvantage.” “What does that mean?” Scalia asks. “I could certify to that … there are country clubs I couldn’t get into.”

But it’s clear that even if a descendant of slaves appended an affidavit authored by Alex Haley, it would not be sufficient to overcome Scalia’s objections to affirmative action. In a concurrence in Adarand I, he wrote, “there can be no such thing as a creditor, or debtor race.” Thomas added, in his own concurrence in Adarand I that: “Govern­ment cannot make us equal; it can only recognize, respect, and protect us as equal before the law.” The other three decidingvotes in Adarand I came from O’Connor, Rehnquist, and Kennedy, who were not willing to gut affirmative action altogether, noting that “the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups” still justifies narrow government intercession. In their dissents, the four more liberal justices felt that affirmative action is even more broadly permissible than the O’Connor opinion allowed.

The middle chunk of the Adarand I court, faced with the opportunity to junk affirmative-action altogether, will more likely get rid of the case and wait for a better one to come along. More than one commentator has suggested that the better case already has come along in the glut of cases having to do with affirmative action in education, where the need for clarity in a messy constitutional landscape is dire. As Thomas Baker at the Drake University law school has put it: “Highway guardrails ain’t college diplomas.”

Adarand, in its current guise, likely won’t garner enough support to change the legal landscape much, if at all. It’s hard to conceive of how it garnered the four votes to hear it at all. For the many minorities across the land who wait with bated breath to learn the fate of affirmative action, and for all the Adarands who resent them, today will offer no answers. We’ll just have to sit back and wait for one of the education cases to finally ring the court’s doorbell. Stay tuned for Hopwood VII: The Final Chapter. And be very, very afraid.