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In Season 2, Episode 4 of Notorious, we discuss the case of Adarand Construction v. Pena, which involved whether a federal statute, which provided for favor treatment to a suspect class to remedy past discrimination, violated the Equal Protection Clause as embodied in the Fifth Amendment.

In this case, Adarand, a contractor specializing in highway guard rail work, submitted the lowest bid as a subcontractor for part of a project funded by the United States Department of Transportation. Under the terms of the contract, the prime contractor would receive additional compensation if it hired small businesses controlled by “socially and economically disadvantaged individuals.” Gonzalez Construction Company was awarded the work as they were certified as a minority business and Adarand was not. The primary contractor would have accepted Adarand’s bid had it not been for the additional payment it received for hiring Gonzalez.

Justice O’Connor, writing for the majority, held that racial classifications, imposed by the federal government, must be analyzed under a standard of "strict scrutiny." Strict scrutiny is the most stringent level of judicial review for claims of Equal Protection Clause violations and requires that racial classifications be narrowly tailored to further compelling governmental interests.

Interestingly, there were six different opinions issued in this case, including the majority opinion. Justice Ginsburg issued a dissent, in which she once again proved herself to be a consensus builder: “I write separately to underscore not the differences the several opinions in this case display, but the considerable field of agreement--the common understandings and concerns--revealed in opinions that together speak for a majority of the Court.”