적극적 평등실현조치(Affirmative Action)에 관한 미연방대법원의 최근 판결(SFFA)과 그 시사점 ― 헌법 이론과 실제의 관점에서 ―

The U.S. Supreme Court's landmark decision in the SFFA case on June 29, 2023, marked a significant departure from previous rulings on affirmative action. This study delves into the concept of affirmative action, examining domestic trends and discussions. Given the evolving social dynamics influenced by gender and generational conflicts, a thorough analysis of the implications of the SFFA ruling becomes imperative. The study recommends a deeper constitutional consideration for affirmative action legislation, a critical review of policy instruments like quotas, and an active role for Constitutional Court of Korea in shaping the discourse. First, the recommendation for a deeper constitutional consideration implies that lawmakers and legal authorities should engage in a more in-depth examination of the constitutional basis for affirmative action. This involves a comprehensive analysis of how affirmative action aligns with or diverges from the principles and values enshrined in the constitution. The suggestion implies a call for a more profound understanding of the legal and constitutional justifications supporting affirmative action policies. Second, the need for a careful and evaluative assessment of specific policy tools employed in affirmative action, with a particular focus on instruments like quotas. Quotas are numerical targets set to ensure a certain level of representation for specific groups. The study suggests that the effectiveness, fairness, and potential drawbacks of such policy instruments should be critically examined. Finally, the study proposes an active role for Constitutional Court of Korea, like the U.S. Supreme Court, in influencing and guiding the public discourse on affirmative action. This implies that these courts should not only pass judgments but actively participate in discussions and debates surrounding affirmative action. By doing so, the courts can contribute to shaping the direction of public opinion, legal interpretation, and potential legislative changes related to affirmative action. It underscores the idea that constitutional court of Korea can play a leadership role in guiding societal attitudes and legal frameworks related to affirmative action. While acknowledging affirmative action as a tool to rectify historical discrimination, the study emphasizes the need for a nuanced approach to prevent reverse discrimination claims and the perpetuation of societal stigma. The article encourages reflection on normative realities and problem-solving, with a keen eye on ongoing discussions in the United States as a precursor to potential improvements.