AFFIRMATIVE ACTION AND JUDICIAL REVIEW

The Equal Protection Clause of the U.S. Constitution, which is believed to have had a major influence on the drafting of Article 14 of the Japanese Constitution, was enacted to protect formerly enslaved blacks and their descendants after the American Civil War in 1861. However, the Equal Protection Clause has since been interpreted as a race-neutral provision, and the Supreme Court has a developed a theory of case law that interprets the Clause in a race-neutral manner. Under that interpretation of the Clause in question, there has been a conflict between the Supreme Court justices over the application of the standard of judicial review in cases where the constitutionality of Affirmative Action, a system designed to redress the harmful effects of past racial discrimination, has been brought into question. This article therefore clarifies the conflicts among the Supreme Court justices over the application of the standard of judicial review, focusing on the Supreme Court cases involving violations of the Equal Protection Clause of the U.S. Constitution, and examines the judicial review that justifies Affirmative Action.