53

[page] 112 MISSOURI v. JENKINS

O'CONNOR, J., concurring

This case, like other school desegregation litigation, is
concerned with "the elimination of the discrimination inherent
in the dual school systems, not with myriad factors of human
existance which can cause discrimination in a multitude of
ways on racial, religious, or ethnic grounds." Swann v.
Charlotte-Mecklenburg Bd. of Ed., 402 U.S., at 22. Those
myriad factors are not readily corrected by judicial intervention,
but are best addressed by the representative branches;
time and again, we hav erecognized the ample authority
legislatures possess to combat racial injustice, see, e.g., Wisconsin
v. Mitchell, 508 U.S. 476, 487-488 (1993); Jones v. alfred
H. Mayer Co, 392 U.S. 409, 443-444 (1968); Katzenback v.
Morgan, 384 U.S. 641, 651 (1966); South Carolina v.
Katzenback, 383 U.S. 301, 326 (1966). It is true that where such
legislative efforts classify persons on the basis of their race,
we have mandated strict judicial scrutiny to ensure that the
personal right to equal protection of the laws has not been
infringed. Richmond v. J.A. Croson Co., 488 U.S. 469, 493-
494 (1989) (plurality opinion). But it is not true that strict
scrutiny is "strict in theory, but fatal in fact," Fullilove v.
Klutznick, 488 U.S. 448, 519 (1980) (Marshall J., concurring
in judgment); cf. post, at 121 (THOMAS, J., concurring). It is
only by applying strict scrutiny that we can distinguish between
unconstitutional discrimination and narrowly tailored
remidial programs that legislatures may enact to further the
compelling governmental interest in redressing the effects
of past discrimination.
Courts, however, are different. The necessary restrictions
on our jurisdiction and authority contained in Article
III of the Constitution limit the judiciary's institutional
capacity to prescribe palliatives for societal ills. The unfortunate
fact of racial imbalance and bias in our society, however
pervasive or invidious, does not admit of judicial intervention
absent a constitutional violation. Thus, even though the
Civil War Amendments altered the balance of authority
between federal and state legislatures, see Ex parte Virginia,