* Assistant Professor of Law, New England School of Law; Visiting Assistant Professor of Law, Boston College Law School, Spring 2004. Thanks to Alexandra Deal, Shaun Spencer, Chanterelle Sung, Elisabeth Todaro, and Joan Wasser for excellent comments and suggestions. 1 123 S. Ct. 2325 (2003). 2See id. at 233942. 3Id. at 2342. 4 438 U.S. 265 (1978). 5See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (concluding that strict scrutiny is the applicable equal protection standard under the Fifth Amendment for reviewing race-based classifications); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (concluding that strict scrutiny is the applicable equal protection standard under the Fourteenth Amendment for reviewing race-based classifications). 6 Gerald Gunther, Foreword:In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972) (internal quotation omitted). 7See,e.g., Adarand, 515 U.S. at 227, 23738 (holding unconstitutional a set-aside program designed to benefit minority-run businesses). 8See Grutter, 123 S. Ct. at 2339 (noting the special niche universities occupy in our constitutional tradition). 9 Gail L. Heriot, Strict Scrutiny, Public Opinion, and Affirmative Action on Campus: Should the Courts Find a Narrowly Tailored Solution to a Compelling Need in a Policy Most Americans Oppose?, 40 Harv. J. on Legis. 217, 21819 (2003). 10See id. at 227 (noting, for example, public opinion polls that suggest that ninety-four percent of whites and eighty-six percent of African Americans said hiring, promotions, and college admissions should be based strictly on merit and qualifications other than race/ethnicity (internal quotation omitted)). 11 United States v. Carolene Products Co., 304 U.S. 144, 15253 n.4 (1938); see alsoJohn Hart Ely, Democracy and Distrust 7577, 14849, 15153, 16061(1980). 12Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16 (1962). 13 Cogent defenses of the need and constitutional justification for affirmative action in higher education have been stated elsewhere, and I will not rehearse those arguments here. See,e.g., Ronald Dworkin, What Did Bakke Really Decide?, inA Matter of Principle 304, 304 (1985); John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723, 727 (1974); Jack Greenberg, Affirmative Action in Higher Education: Confronting the Condition and Theory, 43 B.C. L. Rev. 521, 52225 (2002). My focus in this Essay is on the jurisprudential issues provoked by the application of strict scrutiny equal protection review to affirmative action programs. 14 Romer v. Evans, 517 U.S. 620, 631 (1996); see also Choquette v. Perrault, 569 A.2d 455, 460 (Vt. 1989) (recognizing that virtually all regulatory statutes have disparate effects on various sectors of the public). 15See Loving v. Virginia, 388 U.S. 1, 11 (1967). 16See Graham v. Richardson, 403 U.S. 365, 37172 (1971). 17See Oyama v. California, 332 U.S. 633, 646 (1948). 18See United States v. Virginia, 518 U.S. 515, 533 (1996) (concluding that, in respect to legislative classifications based upon sex, the reviewing court must determine whether the proffered justification is exceedingly persuasive. The burden of justification is demanding and rests entirely on the State.). 19Romer, 517 U.S. at 631. 20See,e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (applying strict scrutiny to benign racial classifications). 21SeeBickel, supra note 12, at 1618. 22 As Professor Barry Friedman has put it: The problem is this: to the extent that democracy entails responsiveness to popular will, how to explain a branch of government whose members are unaccountable to the people, yet have the power to overturn popular decisions? Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333, 335 (1998). 23See United States v. Carolene Products Co., 304 U.S. 144, 15253 n.4 (1938) (suggesting that prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities). More broadly, the judiciary, more sheltered than the [other branches] from transient political currents and rel[ying], as the framers said, on judgment rather than will, is the institutional custodian of justice. Abram Chayes, How Does the Constitution Establish Justice?, 101 Harv. L. Rev. 1026, 1026 (1988). Note that I am concerned in this Essay with the modern equal protection approach to assessing legislative classifications, and not the fundamental interest strand of equal protection doctrine. 24 Elizabeth S. Anderson, Integration, Affirmative Action, and Strict Scrutiny, 77 N.Y.U. L. Rev. 1195, 1204 (2002). 25Ely, supra note 11, at 106. 26See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ([T]he purpose of strict scrutiny is to smoke out illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool.). 27See Grutter v. Bollinger, 123 S. Ct. 2325, 233738 (2003). 28 In recent years, the U.S. Supreme Courtand certain state supreme courtshas approached rational basis review with more gusto. See Romer v. Evans, 517 U.S. 620, 63536 (1996) (concluding that Colorado constitutional amendment prohibiting laws that forbid sexual orientation discrimination was not rationally related to a legitimate government purpose); Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 968 (Mass. 2003) (holding, under state constitution, that restricting marriage to opposite-sex couples had no rational basis); Baker v. State, 744 A.2d 864, 867 (Vt. 1999) (holding, under state constitution, that exclusion of same-sex couples from marriage bore no reasonable relation to the asserted governmental purpose for the exclusion); see also Lawrence Friedman & Charles H. Baron, Baker v. State and the Promise of the New Judicial Federalism, 43 B.C. L. Rev. 125, 15253 (2001). Nonetheless, in the majority of cases in the state and federal courts, the traditional conception of minimum rationality review of governmental classifications applies. 29See,e.g., United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980) (upholding law regarding dual retirement benefits on basis of justifications legislature could have found to exist). 30Cf. Grutter, 123 S. Ct. at 2338 (noting that [c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause). 31See Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 78 (1996) (arguing that the modern equal protection framework promotes planning and predictability for future cases by enabling individuals to predict judicial judgments). 32Adarand, 515 U.S. at 237. 33 504 U.S. 191 (1992). 34See id. at 19899, 208. 35 Ely, supra note 13, at 735. 36See supra notes 13 and accompanying text. 37See Heriot, supra note 9, at 224, 233 (noting that the majority of Americans apparently do not believe that racially preferential admissions policies are narrowly tailored to fit a compelling interest). 38Cf. Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307, 313 (6th Cir. 1998) (stating that the popularity of [a] challenged measure does not affect the courts analysis of its constitutionality). 39SeeMichael J. Perry, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary 9 (1982) (explaining that, [a]s a general matter, a person is accountable to the electorate directly if he holds elective office for a designated, temporary period and can remain in office beyond that period only by winning reelection). 40See Heriot, supra note 9, at 224 (arguing that [t]he failures of representational democracy . . . are well known). 41Seeid. at 233 (reasoning that strict scrutiny should include a reluctance to approve racially discriminatory admissions policies in the face of strong public sentiment against them). 42Id. at 226 (citing Paul M. Sniderman & Thomas Piazza, The Scar of Race 130 (1993)). 43 Patricia M.Y. Chang, Survey Says: Recent Polls Tell Us a Lot About Catholics. Or Do They?, B.C. Mag., Spring 2003, at 61. 44See Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 Harv. L. Rev. 961, 1351 (2001) ([O]pinion research will often have limited value. The unreliability of polling information is suggested by the sensitivity of responses to modest changes in the wording of the questions posed and by other factors.). 45See id. at 1351 n.946 (summarizing social science research findings). 46See Heriot, supra note 9, at 225 (discussing California and Washington initiatives). 47See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). In Daubert, the Court identified four factors to be considered in determining the admissibility of scientific evidence: whether the knowledge can be or has been tested; whether it has been subjected to peer review and publication; the known or potential error rate of the technique; and its general acceptance. Id. at 59294. 48 Heriot, supra note 9, at 225. 49See id. at 22425. Heriot assumes an undifferentiated opposition to all racial preferences; it may be, though, that certain members of the majority oppose affirmative action simply because it is a racial classification that benefits members of minority groups. See id. at 22526. 50 Pursuant to a public choice theory of lawmaking, for example, [t]he legislature is a political battlefield; most of its activity is no more purposive than the expedient accommodation of special interest pressures. William N. Eskridge, Jr. & Philip P. Frickey, Legislation Scholarship and Pedagogy in the Post-Legal Process Era, 48 U. Pitt. L. Rev. 691, 703 (1987). See generallyDennis C. Mueller, Public Choice III (2003) (discussing lawmakers as rational utility maximizers). 51See Grutter v. Bollinger, 123 S. Ct. 2325, 233132 (2003). 52See id. at 233335. 53See Heriot, supra note 9, at 224 n.35. 54 These problems may be a courts concern when they are directly under consideration in a case, as they were in the recent challenge to federal campaign finance legislation. See McConnell v. Fed. Election Commn, 251 F. Supp. 2d 176 (D.D.C. 2003) (challenging on First Amendment and other constitutional grounds aspects of federal campaign finance reform law), affd in part and revd in part, 124 S. Ct. 619 (2003). 55 744 A.2d 864 (Vt. 1999). 56 798 N.E.2d 941(Mass. 2003). 57See Baker, 744 A.2d at 886. 58See Goodridge, 798 N.E.2d at 96970. 59SeeVt. Stat. Ann. tit. 15, §§ 12021207 (2000) (establishing civil unions in response to Baker). 60 The Massachusetts Senate reacted by proposing a civil union law that would provide same-sex couples many of the tangible benefits and protections of marriage. SeeIn re Opinions of the Justices to the Senate, 802 N.E.2d 565, 566 (Mass. 2004). The court concluded that any law establishing a separate-but-equal civil union regime for same-sex couples would be constitutionally infirm. See id. at 572. 61See Friedman & Baron, supra note 28, at 151; see also Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 87072 (1999) (discussing the rights-remedies distinction in view of respective judicial and legislative roles).