Summary
Although this note argues that rational basis review is flawed and needs rescue, it would be inappropriate and false to suggest that these problems are new or (post) modem concerns. Rational basis review is an enduring problem in the US jurisprudence precisely because it stems directly from and highlights the fundamental concern the Supreme Court has grappled with since Marbury v. Madison: What is the role of courts in a constitutional democracy? What is the role and function of courts in relation to the role and function of the other two branches of government? For now, it is worth observing that all commentaries, criticisms of, and suggestions for revamping judicial review under due process and equal protection will not be able to truly devise a workable methodology until and unless the Supreme Court and the country can resolve and feel comfort, rather than anxiety, about the role of the courts in US politics and society.
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Extract
Rational Reviews, Irrational Results*
There are problems with deciding cases based on factors not encompassed by the applicable standards. First, the approach is rudderless, affording no notice to interested parties of the standards governing particular cases and giving no firm guidance to judges who, as a consequence, must assess the constitutionality of legislation before them on an ad hoc basis. Second, and not unrelatedly, the approach is unpredictable and requires holding this Court to standards it has never publicly adopted. Thus, the approach presents the danger that, as I suggest has happened here, relevant factors will be misapplied or ignored. All interests not "fundamental" and all classes not "suspect" are not the same . . . .
-Justice Thurgood Marshall1Our jurisprudence displays a remarkably nominal fealty to rational basis review, leaving it little more than a hollow test. In some instances, the test being applied is a rational basis test in name only. In Romer v. Evans,2 for example, the Supreme Court stated that it was applying rational basis review to the Colorado anti-gay-rights amendment,3 yet the subsequent analysis did not resemble traditional rational basis review.4 In other cases, the Court is unwilling to apply intermediate or strict scrutiny but also directly expresses reluctance about rational basis review's capabilities. In Lawrence v. Texas,5 Justice O'Connor suggested that the majority was applying something more than conventional rational basis review but less than intermediate or strict scrutiny.6 In fact, the application of traditional rational basis review in one case is often quite distinct from its iteration in other cases.7Rational basis review is fundamentally flawed. Underlying rational basis review are few of the normative principles that would lend it coherence, guidance, or a relatively high degree of certainty and predictability. This lack of principle has resulted in the formulation and application of a test in which the government's interests will almost always prevail over the individual's.Under rational basis review, governmental action must not cross the threshold of arbitrariness.8 However, the government's interests may be construed broadly while the individual's interest is construed narrowly.9 This synthesis, which paradoxically weds a heavy presumption that the governmental conduct at issue is constitutional with a fear of tyrannous governmental behavior,10 guarantees that governmental actions, ordinances, and statutes will nearly always be seen as legitimate, irrespective of the strength of the individual's interest and regardless of the larger constitutional regret that denying such an interest may entail. The thumb on the scale in favor of governmental interests may be characterized as a sort of predictability, but this is not the kind of predictability we should seek. Predictability should not guarantee that a specific party will generally prevail. Rather, the consistency of rational basis review should derive from a well-defined set of criteria that do not shift based on whether the Justice penning the majority opinion c...See the full content of this document
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