Constitutional law as "normal science".

• Author: Massaro, Toni M.

An enduring feature of equal protection and substantive due process review of government action is being lost in much contemporary discourse: these challenges usually fail. Claims that the current Court is exceptionally activist are belied by its track record in this arena. The Justices interpret substantive due process and equal protection rights very narrowly, and protect citizens only from exceptionally egregious, biased, intrusive, or irrational government action. (1) Most government follies easily withstand equal protection and substantive due process review. Although the Court plainly does intervene in important contexts, actual cases are unusual, emerge slowly, and hew to settled principles as far as possible.

The 2002 Term displayed this pattern beautifully. The Court decided several substantive due process and equal protection cases and--characteristically--upheld the government's action in most of them, despite impressive evidence of irrationality. (2) In two of the decisions, it did so unanimously and unceremoniously. (3) It allowed doctrine to evolve with the times in three other decisions, but these modifications were predictable and within the plausible reach of settled principles.

The Court decided the equal protection and substantive due process cases through a hybrid mixture of formulas and pragmatism--not with pure formulas or pure pragmatism. The method is formulaic at its core and cautiously dynamic and non-formulaic on its periphery. The doctrine moves incrementally with evolving social, political, and philosophical shifts in American culture, and contains very few surprises. Although the Court occasionally reaches decisions that effect a significant change in the application of fundamental principles, the Court makes no quantum leaps and rarely modifies the fundamental principles themselves. As Dan Farber has observed, constitutional law is "normal science," (4) not radical science. Simulating the common law process of decision-making, the Justices invoke available doctrinal support for shifts. They seek to cabin the impact of any changes, and they emphasize the limited role that the Court realistically can, and constitutionally should, play in shaping public policy. When a Court decision proves to be a tipping point for a new cultural trend, this is because the conditions for such change are ripe, not because the Court alone effects, in parthenogenetic bursts, extreme cultural reforms.

When outrage erupts over Court decisions--as it did in 2003 over the same-sex sodomy and affirmative action cases--it is because the issues are vigorously contested, have great emotional content, and could go either way under applicable doctrinal standards. It is not because the Court forges doctrine willy nilly. A Court run so amuck, mindful of no doctrinal tethers, would inspire impeachment efforts or demands that we pitch judicial review altogether--steps that very few serious commentators believe are justified. In sum, the sky is not falling over our democratic institutions; nor are the heavens opening for individual liberty.

The 2002 term offered a perfect illustration of how this modest, incrementalist approach to doctrinal evolution can spark angry howls of judicial activism. In Grutter v. Bollinger (5) and Gratz v. Bollinger, (6) the Court reviewed two race-conscious university admissions policies. (7) The Court upheld one of them and struck down the other, sparking acid reactions in some corridors and jubilation in others.

The split outcomes, though, were both predictable and reasonably supportable as a matter of precedent and public policy. The Court had suggested, before Grutter and Gratz that only very narrowly tailored remedial measures or "social emergencies" justify race-conscious measures. The Court had been particularly hostile to racial "quotas" or "set-asides," (8) but it also had insisted that strict scrutiny is not necessarily fatal. (9) Moreover, the case law denouncing quotas had always been tempered by other official practices--including practices of the federal government--that continued to underscore the significance of race-conscious goals, to stress the importance of diversity, and to use race-sensitive statistics to achieve these goals. (10) In Grutter and Gratz, the Court ended some of the uncertainty about the validity of these enduring practices by agreeing that achieving diversity among students within a university is a compelling goal that can be advanced through narrowly tailored race-conscious measures. (11)

In doing so, the Court also reinforced core principles of Justice Powell's opinion in University of California Regents v. Bakke, (12) on which countless educational institutions have relied since 1978. Grutter and Gratz allowed these practices to continue, but only within specific guidelines. The Court in Grutter likewise pointed to the briefs filed by business and military leaders, who maintained that race-conscious diversity remains essential in their domains. (13) At the same time, the Court warned that diversity measures must be carefully crafted to advance their goals and may not reach farther in time or scope than necessary. (14)

In sum, the Court juggled complex doctrinal and practical concerns and sought to create as little disruption as possible. It deferred to educator, military, and business leaders' opinions about real-world consequences. It preserved fractured judicial precedent, insofar as possible. It placed substantial limits on the future use of race conscious measure. And it settled an issue that had split the nation, and the lower courts, in ways that demanded Supreme Court attention. The Court nevertheless took a scolding from many critics, both for the approach and for the results.

The Justices straddled a similar set of concerns in Lawrence v. Texas. (15) Five Justices held that a Texas law that prohibited same-sex sodomy violated substantive due process. (16) This decision Lawrence clearly represented a significant doctrinal progression. The majority noted the evolution of public mores about homosexuality, both nationally and internationally, (17) and invoked case law reaching back to the 1960s to support the result. (18) The sixth vote to strike down the statute--cast by Court centrist Justice O'Connor--relied on equal protection reasoning from Romer v. Evans. (19) Again, however, the case was hardly radical in terms of the Judicial method or doctrinal progression. It nevertheless has become an emotional focal point for political conservatives and for those who condemn dynamic interpretations of the Constitution.

Significantly, the Court easily upheld government actions against equal protection and substantive due process challenges in two other cases during the 2002 term, both of which escaped media attention entirely. (20) Yet these unnoticed cases offer important evidence that the Justices have not abandoned the traditional, weighty presumption against overturning government action. On the contrary, they continue to exercise this power very sparingly. The absence of bright lines on the doctrinal margins and the transgression of lines in isolated cases do not obliterate all meaningful lines. They mean that the Court eschews both hidebound formalism and free-form activism, much to the chagrin of critics from the political right and the political left.

This Essay takes aim at critics who argue for more formalism from the Court and who insist that the Justices disregard the limits of the Constitution and of judicial authority when they extend equal protection or substantive due process protections to new terrains. The Court's limited version of interpretive dynamism is consistent with past practices and necessary to prevent "legal petrification." (21) In practice, this dynamism is greatly tempered by the many practical and constitutional limits on judicial review and by the centrist-to-very conservative composition of the federal judiciary. The increasingly popular indictment of the Court as a group of "wide-eyed activists" is terribly misleading, if not dangerous for judicial independence.

I limit my inquiry here to only two constitutional rights and to October Term 2002, because the treatment of these rights during that Term offers a useful barometer of the Court's alleged judicial activism in exceptionally charged areas of constitutional law. I begin with the unremarkable decisions, where the Court used its customary, blunt-lined rational basis test. I follow with a summary of the provocative cases, where the Court's dynamism becomes apparent and doctrinal lines and formalist methods blur. If one looks across the whole spectrum of cases, one sees that the Court uses both formalism and dynamism, but that formalism plainly is the rule, not the exception. The combination allows the Court to occasionally adopt new perspectives on traditional constitutional principles without having to abandon the principles themselves.

1. UNDER THE MEDIA RADAR: RACING ASSOCIATION AND BUCKEYE

   Although the affirmative action and sodomy cases dominated the 2002 Term and riveted a national audience, their doctrinal impact was softened by cases that received scant or no public attention. I highlight two of these sleepers. Such cases prove that equal protection and substantive due process doctrine remain unaltered at their cores.

   1. RACING ASSOCIATION

      The first example of judicial business as usual was Fitzgerald v. Racing Association of Central Iowa. (22) Racing Association involved a challenge to Iowa's disparate tax treatment of slot machines on excursion riverboats, relative to vis-a-vis slot machines at racetracks. (23) Iowa taxed the adjusted revenues from slots on riverboats at a maximum rate of 20 percent. In contrast, under a 1994 amendment to its laws, Iowa allowed racetracks to operate slot machines, but taxed adjusted revenues from those racetrack slots at a maximum rate of 36 percent. (24) The racetrack owners brought suit, challenging the...