With Judge Neil Gorsuch of Colorado on his way to Senate confirmation, the Supreme Court can return to considering a full plate of challenging constitutional issues, including one left unresolved for more than 20 years: can Congress award government contracts on the basis of race?
In 1995, in Adarand Constructors, Inc. v. Peña, a tiny “mom and pop” company from Colorado Springs, Colo., challenged a federal program that used race to award highway projects. In a 5-4 ruling authored by Justice O’Connor, the Supreme Court struck down two earlier rulings that permitted Congress to make decisions based on race, and then ruled that Congress itself is subject to the equal protection guarantee: “Any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.” Although she insisted “strict scrutiny” is not always “fatal,” that is most often the case.
Time Magazine called the ruling “a legal earthquake.” In response, President Bill Clinton said he would “mend [affirmative action], not end it,” but he spent his last days in office vigorously defending race-based programs. Republicans, who controlled Congress, had the chance to end the programs but, lacking political courage, agreed with Democrats to “leave it up to the courts.”
Then, lawyers for President George W. Bush defended Congress’s ability to enact race-based programs. Although the Adarand case ended, its 1995 victory remained a controlling legal precedent.
Soon, however, the Supreme Court lost its way, as demonstrated by a 2003 dissent filed by Justice Scalia scolding his colleagues for denying certiorari in a test of race-based, government contracting because it “invites speculation that [Adarand] has effectively been overruled.” “We should…make clear that we stand by [our] insistence that ‘racial classifications are suspect’… and that the courts will employ ‘searching judicial inquiry into the justification for such race-based measures… to ‘smoke out’ illegitimate uses of race.'”
Enter President Barack Obama and his administration, which viewed so many things through a racial lens. For example, Dodd-Frank had “diversity” hiring quotas, and the Federal Aviation Administration had a scheme to hire air traffic controllers based on race.
Meanwhile, a tiny, brave Texas company, Rothe Development, Inc., fought against the use of race in the awarding of information technology and communication contracts by NASA and the Defense Department. Susie Patenaude received her bachelor’s degree in education with concentrations in mathematics and business from Southwest Texas State University (the Texas State University). For years, she taught high school math, then she and her husband bought Rothe and she became its president. She quickly discovered why they lost contracts on which they submitted the best bid: racial quotas.
Rothe spent years and thousands of dollars fighting racial preferences and won. All along, Rothe insisted the courts apply Adarand, believing that the programs could not survive “strict scrutiny.” Then, Rothe challenged the race-based set aside in the Small Business Act—8(a)—and appealed a ruling by a federal district court that the program is constitutional. To everyone’s amazement, last September, the Court of Appeals for the District of Columbia ruled (2-1) that 8(a) is not about race and that Adarand does not apply. The dissenting judge, in a fierce rebuke, wrote that everyone knows 8(a) is about race. Earlier this year, the full appeals court declined to rehear the case en banc.
The judicial landscape has changed dramatically since the panel ruled. Today, with a judge in the mold of Justice Scalia soon to be joining the bench, Patenaude has hope. In the days ahead, her attorney—Mountain States Legal Foundation—will ask the Court to grant certiorari, reverse and remand the ruling below, and demand application of the principle Justice Scalia announced in 1995: “In the eyes of government we are just one race here. It is American.”
William Perry Pendley is a contributor to the Washington Examiner’s Beltway Confidential blog. He is president of the Mountain States Legal Foundation, has argued cases before the Supreme Court and worked in the Department of the Interior during the Reagan administration. He is the author of “Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today.”
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