Adarand v. Peña et l’affirmative action

When Adarand v. Pena was handed down in June of 1995, many were the observers who remarked that the Supreme Court had dealt a mortal blow to affirmative action by submitting even federal programs and not just state ones to «strict scrutiny». Three years later, affirmative action programs have not been systematically dismantled and paradoxically, to some degree, they have found their legitimacy reinforced by the strong challenge from the Court. The purpose of this article is to show how the power of resolution of the Supreme Court is limited on social questions such as affirmative action, and so how the action of the Court in this field is more the result of default by Congress and the executive than the consequence of conservative judicial fiat. In order to understand Adarand and its progeny, one indeed needs to reaffirm strongly that the decisions of the Supreme Court have to be interpreted as cues in a larger political dialogue between the three branches of the federal government, between the federal government and the state governments, and finally between government and the actors of the private sectors, who, in the case of affirmative action, see nothing positive coming out of a simple dismantling without concomitant redesigning of the tools necessary to handle the racial question

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