Selective Judicial Activism in the Equal Protection Context: Democracy, Distrust, and Deconstruction
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.