Affirmative Action and the Public Interest (From Supreme Court Review, P 1-43, 1996, Dennis J. Hutchinson, David A. Strsuss, et al, eds. - See NCJ 163692)

• NCJ Number: 163693
• Author(s): D A Strauss
• Date Published: 1996
• Length: 43 pages
• Sale Source: University of Chicago Press
• Publication Type: Survey
• Language: English
• Country: United States of America

Annotation

This analysis of U.S. Supreme Court decisions regarding affirmative action concludes that although the decisions appear to present several anomalies, they make sense if understood as a response to a widespread problem in democratic politics rather than to the kinds of concerns that led to prohibitions of discrimination against minorities.

Abstract

The belief that affirmative action is like discrimination against minorities is unconvincing in the abstract; it is not surprising that the Court has not followed through on this belief in designing its doctrine. The Court's concern in these cases is implicit in the doctrine but has been only partially articulated. This concern is to ensure that affirmative action measures genuinely promote a public interest and do not simply award benefits to powerful interest groups. Strict scrutiny of affirmative action will inevitably cause some worthwhile affirmative actions to be lost because of inadequate consideration of the legitimate public interests that affirmative action might serve, fear of invalidation, or the administrative costs of establishing a program that will survive judicial review. The Court has not fully answered the question of why these costs should be incurred in this area but in so few others. Interest-group politics is a general problem in a democracy, and the country accepts interest-group measures in other areas. However, the court's reasons for considering affirmative action differently from ordinary legislation still need to be fully presented. Footnotes