TITLE

COLLAPSING SUSPECT CLASS WITH SUSPECT CLASSIFICATION: WHY STRICT SCRUTINY IS TOO STRICT AND MAYBE NOT STRICT ENOUGH

AUTHOR(S)
Bedi, Sonu
PUB. DATE
December 2012
SOURCE
Georgia Law Review;Winter2013, Vol. 47 Issue 2, p301
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
While scholarly work often analyzes the nature and scope of the Court's tiers of scrutiny approach to enforcing equality, this Article examines the underlying theory of equal protection. This Article mounts a challenge to the theory of higher scrutiny, and, in particular, strict scrutiny. It seeks to analyze two questions: (1) What principles trigger heightened scrutiny? and (2) Why does the Court need to subject laws that discriminate on the basis of race to strict scrutiny?. The first question concerns the underlying theory of equal protection doctrine: the "what" of higher scrutiny. Scholarly work that seeks to answer this question rightly distinguishes between principles of anti-differentiation and antisubordination, principles that underlie the Court's threshold decision to impose higher scrutiny. Yet, this line of reasoning fails to realize that the Court endorses neither. By collapsing a suspect class analysis—a focus on anti-subordination—with a suspect classification one—a focus on anti-differentiation, the Court's jurisprudence perverts both. It points to an inconsistent theory of reviewing legislation. This is a novel critique of equal protection doctrine, one that has hitherto gone unnoticed. The second question concerns the purpose or goal of strict scrutiny: the "why" of such scrutiny. Once we have decided that strict scrutiny is necessary, what is it meant to accomplish? Here this Article focuses only on the doctrine of strict scrutiny. Drawing from case law and John Ely's classic defense of judicial review, it argues that the answer to the "why" question is about either remedying democratic defects of representation or distinguishing between benign purposes on one hand and racist or nefarious ones on the other. If this is the why of strict scrutiny, it turns out to be both too strict and not strict enough. While scholars rightly criticize the Court for failing to deploy strict scrutiny in certain cases, namely those where unconscious racism may be afoot, they do not home in on the cost in deploying it. This Article argues that strict scrutiny is too strict, because it invalidates a wide range of laws that seek to better the status of racial minorities. Framing Justice Harlan's dissent in Plessy v. Ferguson (1896) in a novel light, it argues that a rational review analysis is sufficient to do the distinguishing work in cases where a law facially discriminates on the basis of race. This Article draws from the recent decision by the Ninth Circuit Court of Appeals in Perry v. Brown (9th Circ. 2012) invalidating Proposition 8, the California constitutional amendment defining marriage between a man and a woman, to buttress this claim of the sufficiency of a rational review analysis. After all, if such a review can invalidate Legislation based on homophobia, mere hostility to gays and lesbians, it can invalidate legislation based on racism, mere hostility to racial minorities. This Article concludes that strict scrutiny, as it is currently understood, is too blunt an instrument. We must be careful in deploying it, precisely because it stands at the center of our dual commitments to democracy and judicial review.
ACCESSION #
87860649

 

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