Asian Pacific American Law Journal

The judicial tools of standards of review are designed to recognize historical inequities by applying heightened burdens of proof for discrimination and the abridgment of constitutional rights. In this Article, I argue that, in the past twenty-seven years since Adarand Constructors v. Peña, the Supreme Court’s contextual application of strict scrutiny for race and national origin discrimination has evolved to a point of instability, rendering its outcomes indeterminate. This instability is a result of our national conflict over when and how to use race to remedy race-based discrimination.

The Court has selectively applied different standards of deferenced epending on the reasons that the government uses race. In applying these standards, the Court treats governmental use of race, whether benign or invidious, as two sides of the same problem, when in fact they are distinct legal questions. In other words, the Court treats the use of race as suspect regardless of its remedial application. This universalist approach has been defended as the best method to address and capture the complexity of different contexts. However, the universalist approach at its core, represents two diametrically opposed viewpoints on the role of race in American society.

This inconsistency extends back before Adarand to the 1942 Korematsu v. U.S. decision. Since Korematsu, the Court has overwhelmingly given substantial deference—what I refer to as ultra-deference—to government rationales of national security and safety over the interest of civil liberties and civil rights protections for minorities and marginalized groups. Since the September 11, 2001 terrorist attacks, this practice of ultra-deference has become firmly established in regulatory and jurisprudential practices. Most recently, the principles of Korematsu reappeared in the 2018 Trump v. Hawaii decision. Justice Robert’s opinion reflects that, even when presented with clear and convincing evidence of religious and national origin discrimination that should trigger a higher standard of strict scrutiny, ultra-deferential justices are willing to imply a presumption of a rational basis for government justifications.

This ultra-deference occurs despite insufficient facts to satisfy the standard threshold for the discharge of the government’s burden of proof when its policy discriminates on the basis of race and national origin. Ultradeference is manifested in the mechanics of when, whether, and how to apply the strict scrutiny standard of review to suspect classifications of race and national origin. Ultra-deference to national security and safety rationales has been most often used in cases involving politically sensitive issues such as immigration. It has been presumed in cases where the Court deemed the national security interest of paramount importance to outweigh evidence of even invidious motivation, let alone disparate impact.

While others may argue that a contextual application of strict scrutiny is an appropriate individualized response to the diversity of factual scenario striggering the suspect classification of race, such deference is in direct contrast to the universalist application of strict scrutiny to race-conscious policies regardless of benign, remedial, or invidious purposes. This inconsistency raises the importance of a thorough legal analysis of the role that implicit bias plays when there is clear evidence of disparate impact on the basis of race or national origin.