Justice KENNEDY, with whom Justice SCALIA joins, dissenting.
Almost 100 years ago in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), this Court upheld a government-sponsored race-conscious measure, a Louisiana law that required "equal but separate accommodations" for "white" and "colored" railroad passengers. The Court asked whether the measures were "reasonable," and it stated that "[i]n determining the question of reasonableness, [the legislature] is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort." Id., at 550, 16 S.Ct., at 1143. The Plessy Court concluded that the "race-conscious measures" it reviewed were reasonable because they served the governmental interest of increasing the riding pleasure of railroad passengers. The fundamental errors in Plessy, its standard of review and its validation of rank racial insult by the State, distorted the law for six decades before the Court announced its apparent demise in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Plessy § standard of review and its explication have disturbing parallels to today's majority opinion that should warn us something is amiss here.
Today the Court grants Congress latitude to employ "benign race-conscious measures . . . [that] are not . . . designed to compensate victims of past governmental or societal discrimination," but that "serve important governmental objectives . . . and are substantially related to achievement of those objectives." Ante, at 564-565. The interest the Court accepts to uphold the race-conscious measures of the Federal Communications Commission (Commission or FCC) is "broadcast diversity." Furthering that interest, we are told, is worth the cost of discriminating among citizens on the basis of race because it will increase the listening pleasure of media audiences. In upholding this preference, the majority exhumes Plessy § deferential approach to racial classifications. The Court abandons even the broad societal remedial justification for racial preferences once advocated by Justice MARSHALL, e.g., Regents of University of California v. Bakke, 438 U.S. 265, 396, 98 S.Ct. 2733, 2802, 57 L.Ed.2d 750 (1978) (separate opinion), and now will allow the use of racial classifications by Congress untied to any goal of addressing the effects of past race discrimination. All that need be shown under the new approach, which until now only Justice STEVENS had advanced, Richmond v. J.A. Croson Co., 488 U.S. 469, 511, 109 S.Ct. 706, 731, 102 L.Ed.2d 854 (1989) (opinion concurring in part and concurring in judgment); Wygant v. Jackson Board of Education, 476 U.S. 267, 313, 106 S.Ct. 1842, 1867, 90 L.Ed.2d 260 (1986) (dissenting opinion), is that the future effect of discriminating among citizens on the basis of race will advance some "important" governmental interest.
Once the Government takes the step, which itself should be forbidden, of enacting into law the stereotypical assumption that the race of owners is linked to broadcast content, it follows a path that becomes ever more tortuous. It must decide which races to favor. While the Court repeatedly refers to the preferences as favoring "minorities," ante, at 554, and purports to evaluate the burdens imposed on "nonminorities," ante, at 596, it must be emphasized that the discriminatory policies upheld today operate to exclude the many racial and ethnic minorities that have not made the Commission's list. The enumeration of the races to be protected is borrowed from a remedial statute, but since the remedial rationale must be disavowed in order to sustain the policy, the race classifications bear scant relation to the asserted governmental interest. The Court's reasoning provides little justification for welcoming the return of racial classifications to our Nation's laws.
