This Comment identifies a commonly invoked rhetorical trope, the federal judiciary's rejection of race-conscious decision making, running through contemporary discussions of affirmative action. Liberal and conservative commentators alike often assume that the application of strict scrutiny has been "fatal in fact" to federal affirmative action. This Comment, however, challenges the empirical validity of these pessimistic conclusions by surveying the federal affirmative action jurisprudence of public employment from 1989 to the present. This survey examines the constitutional challenges of forty-nine remedial workplace affirmative action plans. Of these forty-nine plans, over forty percent (twenty-one) withstood, or skirted the application of; strict scrutiny by the federal courts. The narrow goal of this survey is to provide a more subtle and accurate account of the federal judiciary's public employment affirmative action jurisprudence. Accordingly, this Comment closely examines the past decade's jurisprudence, probing the demands placed upon affirmative action programs by the requirement that they be narrowly tailored to promote a compelling state interest. The critical goals of this project, however, extend further. By highlighting the space where carefully devised affirmative action plans may constitutionally inhabit, this Comment calls for a rethinking of the ways in which affirmative action is commonly discussed. As more and more commentators fallaciously describe the federal judiciary's "end of affirmative action," narrative structures both construct affirmative action as being constitutionally untenable and allow opponents of affirmative action to draw upon this unconstitutional ethos. By emphasizing how federal courts have validated many affirmative action plans even under the demanding doctrinal rubric of strict scrutiny, this Comment suggests that defenders of the race-conscious project might garner support for affirmative action by reclaiming the persuasive ethos that comes with the federal judiciary's constitutional imprimatur.
