Interest definition in equal protection: a study of judicial technique.

• Author: Green, Roger Craig

1. INTRODUCTION: CLASSIFICATION AND ITS DISCONTENTS

   In the 1960s and 1970s, the Supreme Court developed the three-tiered framework of judicial scrutiny that now dominates equal protection jurisprudence.(1) As this tripartite scheme evolved, its emphasis on group-based classifications sparked impressive debates over which groups qualified as "suspect classes,"(2) but it also led many to overlook the role of government interests.(3) This oversight is especially surprising because the class-based(4) model itself depends on government interests:(5) In applying any level of judicial scrutiny, courts must both define the government interests at stake and weigh them on scales of constitutional "importance" and "relatedness."(6)

   This Note will examine two judicial techniques that are used to define government interests.(7) The first technique is "generality manipulation," by which judges adjust the generality with which interests are defined and deliberately cause them to fail applicable tests of scrutiny. The second involves "excluded-interest rules," which judges use to bar certain government interests from judicial consideration altogether. Judge Sloviter has observed that "how a question is framed [often] determines the answer that is received."(8) Likewise, these techniques of interest definition determine constitutional outcomes in individual cases, and they delimit the doctrinal potential of equal protection as a whole.(9)

   Part II will argue that generality manipulation has exposed three-tiered judicial scrutiny to significant instability and abuse. Just as an individual right can be described broadly or narrowly to provide broader or narrower constitutional protection, a government interest also can be defined at various levels of generality. Judges' choice among these levels of generality often determines whether a particular interest satisfies the importance and relatedness tests of judicial scrutiny. Thus, the power to manipulate interests' generality implies corresponding discretion over whether government policies will survive constitutional challenge.

   To guide this powerful judicial discretion, Section II.C proposes a "border points" theory of generality determination that is based on relationships among generality, importance, and relatedness. The theory's conceptual goal is to direct attention away from analytically irrelevant levels of generality toward those that allow constitutional decisions to be logically complete. In practice, this border points approach would allow three-tiered scrutiny to be applied more honestly(10) and would clarify existing categories of importance and relatedness.(11)

   Part III will present excluded-interest rules as vital, albeit unrecognized, constitutional doctrines used to protect norms that conventional judicial scrutiny cannot, such as "one person, one vote" and opposition to stereotypes. Discussion will focus on two types of excluded-interest rules: "mandatory interest rules" and "forbidden interest rules."

   Mandatory interest rules exclude all government interests except one from judicial consideration, constitutionally requiring a government policy to serve the one "mandatory interest" that is not excluded. Their basic structure allows mandatory interest rules to craft "pure" legal instruments that can protect spheres of political impartiality. The clearest example of a mandatory interest rule arises in voting apportionment. Courts currently require that electoral districts be drawn to support fair representation; no other government interest will suffice. This means that although ordinary political interests such as increasing employment or environmental quality are adequate to justify most government classifications, such interests are wholly inappropriate in the context of electoral reapportionment. Because of the mandatory interest rule, voting policies are constitutionally reserved for the service of democratic impartiality, a value that cannot be alloyed without being lost.

   Forbidden interest rules exclude government interests, such as racial bigotry, that contradict constitutional norms of equal protection. There are weaker and stronger forms of such rules. The weak form bars forbidden interests but allows courts to evaluate any other, non-forbidden interests that the policy might serve. The weak forbidden interest rule against gender-based stereotypes, for example, has formally excised such stereotypes from equal protection jurisprudence. However, policies can survive this rule if they promote some other government interest that is not based on gendered stereotypes. The stronger form of forbidden interest rules invalidates policies that serve forbidden interests, regardless of other interests that the policy might promote. For example, a policy might be unconstitutional per se if it served an interest in denaturalizing racial minorities. Such an interest might be so constitutionally unacceptable as to poison other, satisfactory interests that the government policy also served.

   Without providing a comprehensive theory of when excluded-interest rules should be applied, Part III will illustrate doctrinal possibilities that such rules allow. Mandatory interest rules permit judges to craft institutions, such as in voting procedure, that embody and protect core political impartiality. Forbidden interest rules allow judges to shape our constitutional culture by marking certain government interests as irredeemably corrupt.

   Part IV will consider the doctrinal interaction between the border points theory and excluded-interest rules. Currently, judges uphold constitutional values, even if they are not protected by class-based scrutiny, by manipulating the generality of the interests at stake. Romer v. Evans(12) exemplifies this tactic. If excluded-interest rules were thoughtfully applied in cases like Romer, equal protection could protect various constitutional values in a stable and intellectually honest way. Just as eliminating generality manipulation should bring constitutional norms into the open, excluded-interest rules should make generality manipulation doctrinally unnecessary.

2. MANIPULATING GENERALITY

   One technique used in defining government interests is manipulation of the generality at which they are described. Defining an interest more or less generally affects its constitutional importance and relatedness; thus, judges' power to choose among levels of generality entails substantial control over whether an interest can satisfy judicial scrutiny. This Part will propose a model to limit arbitrariness and abuse in determining government interests' generality, in the hope of clarifying tiered judicial scrutiny.

   1. Basic Concepts

      Issues concerning generality are omnipresent in legal interpretation,(13) and recent scholarship in the context of substantive due process(14) should provide a useful introduction for generality in equal protection.

      To understand what it means for a right to be more or less "general," imagine a series of concentric circles.(15) Each circle represents one possible basis for vindicating individual rights in a substantive due process suit. Different diameters represent different levels of generality at which the right might be articulated; the center represents the narrowest conceivable right, one that would only protect the plaintiff's own actions. Wider circles, representing more general rights, would not only protect the plaintiff's conduct but would also shield a range of related activities.(16)

      The Supreme Court in Griswold v. Connecticut,(17) for example, could have articulated its holding using any of several different levels of generality. The Court could have established a narrow right to buy contraceptive foam, a broad right to plenary sexual freedom, or a right of intermediate generality.(18) Despite its conceptual importance, generality was never explicitly mentioned in Griswold, nor in any other due process landmark, because discussion of generality alone could not answer the operational question of how broadly to define Ms. Estelle Griswold's rights. The interpretive tools that might otherwise have specified "proper" levels of generality for due process rights (tradition, original intent, and political theory, for example), proved to be far more controversial than helpful.(19) Thus, although generality is now a familiar part of due process scholarship,(20) its recognition has not significantly affected the adjudication of constitutional cases.

      On the other hand, generality is hardly ever discussed in the context of government interests.(21) Applying the metaphor of concentric circles, broader circles would represent more general interests--that is, interests that could conceivably support a range of related policies aside from the one under challenge).(22) And the narrowest conceivable interest, enacting the policy for its own sake, would lie at the center.(23)

      United States v. Virginia,(24) which struck down the Virginia Military Institute's (VMI) all-male admissions policy, demonstrates how generality can be applied to government interest analysis. The government interest in Virginia could have been described in at least three different ways. In order of increasing generality, women could have been excluded from VMI (i) for no reason other than a bare desire to exclude them; (ii) in order to train VMI cadets as citizen-soldiers;(25) or (iii) in order to produce an educated citizenry in Virginia.(26)

      Each of these interests could be evaluated using the conventional importance and relatedness tests of judicial scrutiny. The narrowest interest, excluding women from VMI just for the sake of doing so, would be absolutely related to the challenged policy because the policy and interest are logically inseparable. Such a narrow interest would also be absolutely unimportant from a constitutional viewpoint, since it provides no justification except a restatement of the classification itself, resembling a childish...