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Introduction
- University of Virginia Press
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The judiciary . . . may truly be said to have neither FORCE nor WILL, but merely judgment. Alexander Hamilton, Federalist 78. In 1983, a dispute over a fairly small contract to install fixtures in a city jail began that would end years later by placing the U.S. Supreme Court at the center of the nation’s affirmative action policies. The city of Richmond, Virginia, had passed a law requiring construction firms bidding on government work to subcontract at least 30 percent of the dollars at stake in the contract to minority-owned businesses. The contract in question, which called for a bidder to supply and install plumbing supplies in the Richmond jail, received only a single bid. J. A. Croson Company, an Ohio-based mechanical , plumbing, and heating contractor with a local office in Richmond , entered a bid that did not provide for subcontracting to any minority-owned firms. The City of Richmond rejected Croson’s bid as noncompliant with the bid specifications and opted to rebid the contract. In response to the rebidding of the contract, Croson filed a federal lawsuit against the city. After almost six years of circuitous litigation and appeals, in January 1989 the U.S. Supreme Court ruled in City of Richmond v. J.A. Croson Co. that the equal protection clause of the Fourteenth Amendment forbids governments from operating race-based programs like Richmond’s. INTRODUCTION 2 MERELY JUDGMENT This book explores the question of what happens after the Supreme Court decides a case. After the legislation, litigation, and judicial decisions have settled, what then? How are these judicial decisions interpreted and implemented? What is the concrete impact of these sometimes abstract legal decisions? The lessons learned from exposing the contingent nature of the effects of judicial decision making then serve as the basis for constructing a normative view of constitutional interpretation and the relationship between the courts and the elected branches of government. As I find that political institutions enjoy considerable discretion in deciding whether and how to follow judicial decisions, largely because of their ability to defang would-be plaintiffs, I argue for a concept of judicial primacy that would better protect individuals in their enjoyment of constitutional rights. Promise and Reality Following the Supreme Court’s ruling in Croson, Richmond would abandon its affirmative action program and the J. A. Croson Company would no longer be subject to the minority set-aside requirement in competing for government contracts. Croson’s right to equal protection under the law had been vindicated by the Court. Yet throughout the 1990s and the first decade of the twenty- first century, this one decision about fixtures in a Richmond jail played out in cities and states across the United States that had never been party to the litigation. Many American cities had af- firmative action programming similar to Richmond’s in place at the time of the Court’s Croson decision, and many more cities were in the process of creating, or would create over the ensuing years, entirely new affirmative action programs—all of which, if challenged in court, would be analyzed under the same stringent legal rubric delineated in Croson. The Supreme Court specified that these kinds of affirmative action programs, designed to assist minority contractors , would be subject to the same legal analysis as would programs designed to hurt minorities. This legal standard is known as “strict scrutiny.” Because strict scrutiny has long been thought to be “strict in theory, and fatal in fact,” in the immediate aftermath of Croson many assumed that the decision ultimately meant the end of af- [54.211.203.45] Project MUSE (2024-03-28 19:42 GMT) INTRODUCTION 3 firmative action, or at the very least the end of affirmative action in government contracting. All of the affirmative action programs similar to Richmond’s would likely meet the same dire legal fate as had Richmond’s program. Once the courts decide to apply strict scrutiny, they seemingly always have found legislation unconstitutional . Thus, many who reviewed the decision believed the end had come for affirmative action, eyeing the decision as the “virtual death knell for set-aside programs.” Ed Koch, former mayor of New York City, called the decision a “fatal blow to local minority set-aside programs.” One former Reagan department official succinctly summed up the end result of Croson: “[These programs] are gone.” Even some affirmative action supporters, such as League of...