GWEN IFILL: This case has survived six separate Secretaries of Transportation. It is now Adarand Constructors v. Mineta, a challenge to federal affirmative action laws, mounted by a Colorado construction company. For the third time, the Supreme Court is being asked to decide whether the Transportation Department program promotes reverse discrimination.
The program allowed a Hispanic-owned company to win a contract that might otherwise have gone to a lower bidder who is white. For more on today's arguments we're joined by Marcia Coyle, Washington Bureau chief and Supreme Court reporter for The National Law Journal.
So Marcia why does this case keep returning to the court? This is not the first time I'm sure we've talked about this.
MARCIA COYLE: No, that's true. I think the reason it keeps returning is the program being challenged keeps changing, and so the court has to revisit its constitutionality over and over again.
GWEN IFILL: What do you mean it keeps changing? What happens in between the times of the visits to the court?
MARCIA COYLE: Well, basically what happened in 1989 Adarand Constructors, which is a white owned highway construction company, was the low bidder on a project to install guardrails on a highway. It did not get the contract; the contract went to a Hispanic company.
Adarand sued the federal government claiming that a federal program designed to give incentives to prime contractors to hire minority owned companies was reverse discrimination and violated the Constitution.
The Supreme Court got the case in 1995 and it agreed with Adarand. But what was very important about the '95 decision was for the first time the Supreme Court said that federal affirmative action programs have to be tested under the constitutions most searching review what, what we call strict scrutiny.
It said that under strict scrutiny the government has to show a compelling interest for making a race-based classification, as it did in this incentive program. And then it has to show that the program is narrowly tailored to meet that objective.
This case went back down to the lower court to see if the program survived strict scrutiny, the lower court held that it was unconstitutional. It was appealed by the government to the Tenth Circuit, but between the time the Tenth Circuit got to look at it, the program changed. Congress amended it, revised it, got rid of the financial incentive that created the problem for Adarand in the first place.
So the Tenth Circuit got the case and agreed with the lower court that the old program was unconstitutional but said the new program was not that it was narrowly tailored. So this program is now back before the Supreme Court and it's the case in which we heard arguments today.
GWEN IFILL: Who's on first it sounds like.
MARCIA COYLE: Right exactly.
GWEN IFILL: This put the Bush Administration in an interesting position -- it seemed to be defending affirmative action.
MARCIA COYLE: I think opponents of affirmative action felt they had a friend here in the Bush Administration. And the Bush Administration does oppose quotas and there was some feeling that they would come out and oppose this program.
GWEN IFILL: So what did Ted Olson -- the Solicitor General -- have to say about this today?
MARCIA COYLE: He argued the case on behalf of the federal government and he did not hesitate or flinch in his defense of this program. I think you have to understand the nature of the relationship between the Solicitor General of the United States and the Supreme Court to understand what happened here with the Bush Administration.
First of all, the federal government has been defending this program in its various guises for eleven years, and if suddenly the federal government changed its position just because a new president came in, it would cast some doubt on the integrity of the government's argument.
But also the Solicitor General has a responsibility to defend the laws of Congress unless there is no plausible argument that can be made.
GWEN IFILL: So how did the Justices react to the argument today?
MARCIA COYLE: This case has a lot of procedural problems. The lawyer for Adarand Constructors spent maybe five minutes on whether the program itself was constitutional and he remainder of his time putting out fires about whether this case really should be before the Supreme Court.
For example, the part of the program that Adarand first challenged is no longer there. Another part of the program that it claims it's challenging it's not clear that Adarand really did challenge it in the lower court. So many of the Justices were saying what do we do with this case?
GWEN IFILL: So even Justices like presumably Justice Ginsburg, Justice Souter, people who might support affirmative action in a different case, didn't sound like they were interested in taking this case?
MARCIA COYLE: No, it didn't at all. They seemed to indicate that they might dismiss it, send it back to the lower courts. Adarand did argue that if they get to the question of constitutionality, they should find that the program can't pass strict scrutiny.
Adarand argues that Congress never made the required findings that there was actual discrimination in the highway construction industry in Colorado, where Adarand is based. And it also claims the program is just too broad; it's not narrowly tailored. There is a whole list of racial and ethnic groups that are presumed to be disadvantaged.
GWEN IFILL: So if there is going to be a big fight this session over affirmative action, this might not be the case. But I want to ask you about another thing that happened. This is the third day court met outside of its normal chambers because of an anthrax scare.
MARCIA COYLE: Right -- the court building was shut down last Friday. Spores were discovered in a mailroom. About 400 employees have been tested. Today the results came back and were all negative. But in the interim the Supreme Court moved down Capitol Hill to the U.S. Federal Courthouse.
GWEN IFILL: What was that like atmospherically?
MARCIA COYLE: It's very different. I colleague of mine described it as akin to the New York Yankees playing the World Series at the spring training camp. It's a very nice courtroom but it lacks the marbled majesty of the Supreme Court's own courtroom.
GWEN IFILL: For those of us never inside the Supreme Court's big courtroom, I mean how different -- are you on the same level with the Justices -- are they not up high?
MARCIA COYLE: The Justices sit up high, they sit at a curved bench. They emerge at the stroke of 10:00 a.m. through red velvet curtains. At the U.S. Federal Courthouse they emerge from a side door and they come single file up to the bench. In a way it humanizes them.
GWEN IFILL: Some of the majesty is missing.
MARCIA COYLE: Yes.
GWEN IFILL: One more thing on affirmative action. University admissions case -- is that where we're going to actually in the end see the issue fought out?
MARCIA COYLE: I think we will. I think even if Adarand is dismissed, its impact will be very limited. It may actually come back for a fourth time once it's dealt with again by the lower courts.
But I think if the court says anything about affirmative action in Adarand, it will be put under a microscope by proponents and opponents of affirmative action so see had a it might say when the university admissions program cases get to the Court. And that might be next term.
GWEN IFILL: Marcia Coyle, as always, thank you very much.
MARCIA COYLE: My pleasure.