Selective Judicial Activism in the Equal Protection Context: Democracy, Distrust, and Deconstruction
Sherry, Suzanna
:
1984
Abstract
The equal protection clause, ambiguous in its language and its history,' has
over the last three decades been transformed from the "last resort of constitutional
arguments' into a significant force in shaping the American response to
the continuing challenge of a pluralistic society. This transformation, achieved
primarily by the Warren Court, has been effected through development of a
multi-tiered theory of equal protection. Beginning with Koremalsu v. United
States, the Court has applied heightened scrutiny to those legislative schemes
involving suspect classifications or fundamental rights.6 If the legislation involves
neither a suspect classification nor a fundamental right, the Court applies
minimal scrutiny, asking only whether the legislative scheme bears a
rational relationship to a permissible state interest. If one of the factors triggering
heightened scrutiny is present, however, the Court demands that the
government show both a more significant governmental interest and a tighter
fit between the means and the end. The Court thus has adopted a practice of
selective judicial activism, identifying suspect classifications and fundamental
rights as contexts that trigger a more activist stance.
The Court has never clearly articulated the purposes of heightened scrutiny
nor sufficiently explained the nexus between the factors that make a classification
suspect and the need for both a stronger governmental interest and a
tighter fit. One major problem with the current doctrine of selective judicial
activism in the equal protection area is a lack of congruence between the justifications
offered for context-specific judicial activism and the identification of
specific contexts that trigger that activism. This problem takes two forms.
Either the justification is persuasive, but the contextual limits are too narrowly
circumscribed, or the contextual limits are broad but are not justified in constitutional
terms.
This Article is an attempt to explain and defend selective judicial activism
while showing that the only persuasive justification for such selectivity necessitates
changing the current lines of selection.' I will argue that: (1) the purpose
of heightened scrutiny in equal protection cases is to identify those instances in
which class-based prejudice or indifference has likely influenced the legislative
outcome; (2) the "suspect classifications" doctrine often used by the Court in
the contexts of race and gender is fundamentally inconsistent with this purpose
and should be replaced by a "disfavored class" doctrine; and (3) extension of a
"disfavored class" doctrine to race and gender would change results in two
significant areas by validating most affirmative action programs and subjecting
neutral statutes with a disparate impact to heightened scrutiny.
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