Today in Supreme Court History

Today in Supreme Court History: September 6, 1983

|The Volokh Conspiracy |

9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).

The Rehnquist Court (1989)

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  1. Wait, I’m 99% certain that the DOD has policies in place that have preferences for female and minority owned businesses when making contracts. How is it legal for the DOD to use the sex or race of the business owner as one of the factors that goes into who they choose if its already been rule unconstitutional?

    1. Richmond had a “rigid” 30% quota, and the Court, applying strict scrutiny, did not find that Richmond (one-time capital of the Confederate States of America) had identified past discrimination by the city itself that would justify that quota. The Court distinguished from Fullilove v. Klutznick (1980), which upheld a 10% MBE set-aside for certain federal contacts mandated by federal law, by noting that the Fourteenth Amendment specifically charged Congress with remediating past discrimination, and by noting that the federal set-aside could be more easily appealed and waived.

      (In spite of significant efforts, the Croson company could not find any MBE that could and would bid on the only subcontract work comprising 30% of its total bid; a higher bid was provided by a grey-market MBE after prime bids were due, but the city would not allow Croson, which was the only bidder, to adjust its pricing to reflect that change, and the city decided to re-bid the whole contact.)

      1. That brings up another issue though. 1980 was 40 years ago. Two whole generations have been born and raised since that time. People who were entry level workers back then are retiring right now. In five years 65% of the people who were twenty when that ruling went through, will no longer be in the workforce.

        How can the historical justification used in that court ruling still be valid when it was made so long ago? Either the justification was invalid because the quotas have failed to enact the change they were supposed to therefore not remediating past discrimination, or they are now no longer valid because they’ve already remediated past discrimination.

        1. Either the Fifteenth Amendment was invalid because 40 years after passage most blacks people were still unable to actually vote, or it was no longer valid because it already did away with the “black codes”.

          1. 15th amendment is explicit text in the constitution. The judicial ruling comes from legitimate government interests in violating the rights of its citizens. If the legitimate government interests have failed to materialize after 40 years, then there is no justification for the continued violation of the rights of its citizens.

            Linked below is the fourteenth amendment. Nowhere is re-compensation for historical wrongs listed. The only debt mentioned is paying pensions and bounties for those who helped fight on the union side of the war.

            https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv

        2. Exactly!

          And what does two generations of pissed-off White men do for race relations?

    2. Yes, preference for female-owned businesses got is Hi-Way Safety Systems — which is now OK because the husband doesn’t own any of it anymore…https://www.patriotledger.com/news/20200514/hi-way-safety-systems-reinstated-by-state-four-months-after-employees-deadly-crash

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