Friday, April 9, 2010
With Justice Stevens' announced retirement, it is a fitting time to consider his contribution to constitutional law, doctrinally, theoretically, and pedagogically.
One of Stevens' contributions in the equal protection area is his famous "anomaly." Dissenting in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), Stevens wrote:
the Court may find that its new "consistency" approach to race-based classifications is difficult to square with its insistence upon rigidly separate categories for discrimination against different classes of individuals. For example, as the law currently stands, the Court will apply "intermediate scrutiny" to cases of invidious gender discrimination and "strict scrutiny" to cases of invidious race discrimination, while applying the same standard for benign classifications as for invidious ones. If this remains the law, then today's lecture about "consistency" will produce the anomalous result that the Government can more easily enact affirmative-action programs to remedy discrimination against women than it can enact affirmative-action programs to remedy discrimination against African Americans - even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves. When a court becomes preoccupied with abstract standards, it risks sacrificing common sense at the altar of formal consistency.
In other words, the combination of the "tiers" of scrutiny for equal protection with affirmative action doctrine allows the government to more easily assist those groups who the judiciary has deemed the least deserving of judicial protection.
While Stevens was not alone in realizing this consequence, the clear discussion in his dissenting opinion in Adarand has been exceedingly useful in the classroom, not to mention formulating exam hypotheticals.