THE MANY FACES OF STRICT SCRUTINY: HOW THE SUPREME COURT CHANGES THE RULES IN RACE CASES

Evan Gerstmann, Christopher Shortell

Abstract


In this paper, we argue that there is no single test called strict scrutiny when the Court considers claims of racial discrimination. In fact, the Court changes the rules depending on why and how the government is using race. By examining racial redistricting, remedial affirmative action, and diversity-based affirmative action cases, we show how the Court uses at least three very
different versions of strict scrutiny. The costs of maintaining the fiction of unitary strict scrutiny is high. In the area of racial profiling, for example, courts refuse to apply strict scrutiny for fear that it will either overly hamper police or will weaken strict scrutiny in other areas of racial discrimination. An open acknowledgment that the Court is already using different standards of analysis for different types of racial discrimination would allow courts to craft appropriate standards without fear of diminishing protections in other areas.

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DOI: https://doi.org/10.5195/lawreview.2010.151

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