The Federal Government as a Constitutional Niche in Affirmative Action Cases

Abstract

Although the U.S. Supreme Court has held that the same strict scrutiny standard applies to both state and federal affirmative action, federal courts often appear to apply a more deferential form of strict scrutiny to the federal government's use of race. Analyzing the entire corpus of published federal court decisions between 1990 and 2003, I show that federal affirmative action laws are twice as likely to survive as state efforts. Moreover, lower federal courts commonly admit that they are giving unusual deference to federal actors or, alternatively, rely on reasoning that implicitly but effectively allows the federal government to use race in ways barred to states. I conclude that federal courts treat the federal government as a special niche when it comes to affirmative action, and I examine some of the reasons for, and implications of, this practice.

Keywords: strict scrutiny, affirmative action, federal government