Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

When the government legislates or acts on the basis of a “suspect” classification, the Court sets aside the traditional standard of equal protection review and exercises a heightened standard of review referred to as “strict scrutiny.” 1 Paradigmatic of “suspect” categories is classification by race. Under the strict scrutiny standard, the government must demonstrate a compelling interest; usually little or no presumption favoring the classification is to be expected from courts. In addition, the government must demonstrate that its use or reliance on a racial classification is narrowly tailored to further that compelling interest.2 Both prongs of the Court’s strict scrutiny standard involve the case-by-case analysis of multiple factors.

Before settling on strict scrutiny for evaluating racial classifications for equal protection purposes, the Supreme Court’s jurisprudence on racial classifications went through significant change over the years. In its 1944 decision Korematsu v. United States,3 for example, the Court adjudicated the wartime forced removal of Japanese-Americans from the West Coast. In that case, the Court said that because government action targeted only a single ethnic-racial group it was “immediately suspect” and subject to “rigid scrutiny.” 4 In the context of striking down state laws prohibiting interracial marriage or cohabitation in the late 1960s, the Court stated in its 1967 decision Loving v. Virginia that racial classifications “bear a far heavier burden of justification” than other classifications and that these state laws were invalid because no “overriding statutory purpose” 5 was shown and they were not necessary to some “legitimate overriding purpose.” 6

Meanwhile, not all racial classifications harm a particular group, and the Justices debated which standard to apply to racial classifications motivated by a “benign” interest to help or assist a particular racial group. The Court ultimately concluded in its 1995 decision Adarand Constructors v. Pena, that one standard—strict scrutiny—applies to evaluate all racial classifications.7 Thus, government actions that use a racial classification to remedy or ameliorate conditions resulting from intentional discrimination must also undergo strict scrutiny.8

Footnotes

1

See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007).

2

See, e.g., Fisher v. Univ. of Tex., 570 U.S. 297, 309–12 (2013).

3

323 U.S. 214, 216 (1944), overruled by Trump v. Hawaii, No. 17-965, slip op. at 38 (U.S. June 26, 2018). In applying “rigid scrutiny,” however, the Court was deferential to the judgment of military authorities, and to congressional judgment in exercising its war powers.

4

Korematsu, 323 U.S. at 216.

5

McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964)

6

Loving v. Virginia, 388 U.S. 1, 11 (1967). In Lee v. Washington, 390 U.S. 333 (1968), the Court said that preservation of discipline and order in a jail might justify the use of racial classifications if shown to be necessary. Accord Johnson v. California, 543 U.S. 499, 512 (2005).

7

515 U.S. 200, 227 (1995).

8

Adarand, 515 U.S. at 226; City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).