Overview of equal protection doctrine

• Equal protection clause of 14^th Amendment states that “no State shall deny to any person within its jurisdiction the equal protection of the laws.”

• SCt has interpreted this provision as prohibiting arbitrary discrimination, or treating similar things dissimilarly.

• Minimal Scrutiny Test. Without more, this produces a very deferential standard of judicial review. “The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” (City of Cleburne v. Cleburne Living Center 1985)

• Strict Scrutiny Test: Because this stress on mere rationality threatens to transform the clause into a minor protection against legislative carelessness (and according to Robert Nagel, perhaps not even against that, since any statute’s terms suggest a purpose that the statute rationally serves), the clause has been given teeth in cases where the challenged classification is based on race:

• “All legal restrictions which challenge the civil rights of a single racial group are immediately suspect.” (Korematsu v. United States, 1944)

• When legislation employs such classifications, “these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” (City of Cleburne v. Cleburne Living Center, 1985)

• This higher level of scrutiny has been justified with the explanation that race is “so seldom relevant to the achievement of any legitimate interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy – a view that those in the burdened class are not as worthy and deserving as others.”

• Almost no legislation has been able to satisfy this test, whereas almost any legislation can meet the “minimal scrutiny” which asks whether the statute is rationally related to a legitimate state interest.

• Quasi-suspect standard. In the 1970s, SCt devised a third, intermediate level of scrutiny: classifications based on sex (Craig v. Boren, 1976) or illegitimacy (Mathews v. Lucas, 1976) are what has been infelicitously called “quasi-suspect;” they “will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest.” (Mills v. Habluetzel, 1982).

• SCt has not, however, explained how it is determined whether a given type of classification is suspect or quasi-suspect.

• Moreover, it has been noted that the insistence on close fit between means and end, varying in strictness with the level of scrutiny, has only an indirect relation to the evils of racial oppression against which the clause was originally enacted.

• Disproportionate impact. As for cases in which a law does not overtly employ a suspect classification, but disproportionately harms blacks, SCt has said that there is no constitutional violation unless the legislators were motivated by discriminatory intent. (Washington v. Davis, 1976)

• Historical development of equal protection doctrine.

• The prevailing understanding of equal protection builds on the famous Carolene Products footnote four, which declared that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

• SCt eventually developed this suggestion into doctrine: “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is only to say that courts must subject them to more rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”

• Settled doctrine today: “the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.” (Washington v. Davis, 1976).

1. This view draws its power from the fact that the idea of equality does not entail that any specific, substantive right should be guaranteed.

2. As John Hart Ely, the leading scholarly exponent of the theory that the 14^th Amendment is concerned primarily with prejudice infecting the legislative process, puts it: “unconstitutionality in the distribution of benefits that are not themselves constitutionally required can intelligibly inhere only the way that distribution was arrived at.”

• Intent, then, obviously plays an important role in at least one part of the SCt’s equal protection doctrine – the part that deals with suspect classifications. [For a long time, confusion has reigned as to whether motive mattered at all in determinations of the constitutionality of law. SCt has often stated that legislative motive is not subject to judicial review, but it has also handed down many important decisions that can be explained only in terms of motive. Washington v. Davis may have ended this confusion, at least to the extent of declaring conclusively that motivation is relevant.]

• Ely has argued, moreover, that even the formalistic, levels-of-scrutiny approach that applies to suspect or quasi-suspect classifications is best understood as a “handmaiden of motivation analysis”: “Racial classifications that disadvantage minorities are ‘suspect’ because we suspect that they are the product of racially prejudiced thinking of a sort we understand the 14^th Amendment to have been centrally concerned with eradicating.” Even if a challenger cannot prove the discriminatory intent behind a statute, “a classification that in fact was unconstitutionally motivated will nonetheless – thanks to the indirect pressure exerted by the suspect-classification doctrine – find itself in serious constitutional difficulty. For an unconstitutional goal obviously cannot be invoked in a statute’s defense. That means, where the real goal was unconstitutional, that the goal that fits the classification best will not be invocable in its defense, and the classification will have to be defended in terms of others to which it relates more tenuously. The “special scrutiny” that is afforded suspect classifications insists that the classification in issue fit the goal invoked in its defense more closely than any alternative classification would. There is only one goal the classification is likely to fit that closely, however, and that is the goal the legislators actually had in mind. If that goal cannot be invoked because it is unconstitutional, the classification will fall. Thus, functionally, special scrutiny, in particular its demand for an essentially perfect fit, turns out to be a way of ‘flushing out’ unconstitutional motivation, one that lacks the proof problems of a more direct inquiry and into the bargain permits courts (and complaints) to be more politic, to invalidate (or attack) something for illicit motivation without having to come right out and say that’s what they’re doing.

• Koppelman. Is this a sensible way to proceed? Is inappropriate classification the central wrong that the 14^th Amendment ought to be concerned with?