Document Type

Article

Publication Date

1990

Publication Title

Cleveland State Law Review

Keywords

fourteenth amendment, children, poverty, constitutional law

Abstract

Liberal lawyers encounter grim alternatives caused by the Supreme Court's relentless shift to the right, particularly if they consider stare decisis a major constitutional value. They can attack specific decisions, demonstrating inconsistencies with prior cases, conclusory reasoning and/ or poor policy. They can use history, jurisprudence or even literature to make broad-based critiques of the Court's increasing callousness. They can propose counter-doctrine which is consistent with existing caselaw. The third response may appear quixotic, even naive, given the present Court. Nevertheless, exploration of progressive alternatives illuminates existing doctrine and provides potential openings if the Court ever decides to become more compassionate.This article pursues the third technique, maintaining that the Supreme Court's most recent affirmative action decisions, City of Richmond v. J.A. Croson, Co. and Metro Broadcasting, Inc. v. F.C.C. provides a surprising opportunity for the Court to offer constitutional protection to many Americans who are currently underprotected, particularly to poor children. This Article will argue that the Richmond/Metro double standard is acceptable in such difficult areas as affirmative action, particularly if the Court also adopts this Article's primary proposal that the Court should sometimes permit Congress to “dilute” Supreme Court decisions. One implication of the Richmond/Metro double standard is that the Court may have also permitted Congress to “dilute” some of the Court's prior fourteenth amendment decisions. The Court should have decided Fullilove, Richmond, and Metro the same way even if the cases had arrived in a different order; otherwise, basic constitutional rights and structures would be resolved by timing, a factor no less arbitrary than a coin flip. In other words, if the Court had first held that the Richmond plan violated equal protection, it still should have upheld the Congressional minority preferences. The apparent “right” of white contractors not to be prevented on the ground of race from receiving governmental contracts in the absence of detailed findings of prior governmental racism would then have been “diluted” or at least “limited” to the “right” not to be so treated by states and local governments.

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