Contextual Strict Scrutiny and Race-Conscious Policy Making

In his oft-cited article analyzing the United States Supreme Court's Equal Protection jurisprudence of the 1960s and early 1970s, Professor Gerald Gunther proposed that the Court's most exacting standard of judicial review reflected a "scrutiny that was 'strict' in theory and fatal in fact."'The Court's review of laws based on suspect classifications, such as race or national origin, and laws infringing on fundamental rights, including the right to vote, demonstrated that strict scrutiny would prove lethal to a statute challenged on Equal Protection grounds.In particular, the Court's evaluation of laws that subordinated minority groups-including school segregation policies, discriminatory public accommodations and transportation laws, and anti-miscegenation statutes prohibiting interracial marriages-consistently led to the invalidation of racial classifications. 2 Recent challenges to race-conscious policies, including laws designed to remedy discrimination and to expand opportunities for racial minorities, have confirmed the rigor of strict scrutiny.In City of Richmond v. J. A. Croson Co. 3 and Adarand Constructors, Inc. v. Pefia, 4 the Supreme Court held that strict scrutiny must be applied to all racial classifications regardless of whether the policies subordinate