The Supreme Court, 2012 Term - Foreword: Equality Divided

Equal protection law today is divided. When minorities challenge laws of general application and argue that government has segregated or profiled on the basis of race, plaintiffs must show that government acted for a discriminatory purpose, a standard that doctrine has made extraordinarily difficult to satisfy. In discriminatory purpose cases, the ways that citizens experience state action is not constitutionally significant. By contrast, when members of majority groups challenge state action that classifies by race - affirmative action has become the paradigmatic example - plaintiffs do not need to demonstrate, as a predicate for judicial intervention, that government has acted for an illegitimate purpose. Strict scrutiny doctrine imposes restrictions on affirmative action that expressly take into consideration the ways citizens experience state action