Suspect Classification

AuthorKenneth L. Karst
Pages2624-2625

Page 2624

Long before the term "suspect classification" gained currency, Justice HARLAN FISKE STONE captured the idea in his opinion for the Supreme Court in UNITED STATES V. CAROLENE PRODUCTS CO. (1938). While insisting on RATIONAL BASIS as the appropriate STANDARD OF REVIEW for cases involving ECONOMIC REGULATION, Stone suggested that "prejudice against DISCRETE AND INSULAR MINORITIES [that is, religious, or national, or racial minorities] may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." In modern idiom, to call a legislative classification "suspect" is to suggest the possibility that it resulted from prejudice against the group it burdens, a possibility that justifies strict judicial scrutiny to assure that it is necessary to achieve a COMPELLING STATE INTEREST. In practice, most laws subject to this exacting standard are held invalid.

Irony attends the origins of the expression. Justice HUGO L. BLACK, writing for a majority in Korematsu v. United States (1944), one of the JAPANESE AMERICAN CASES, found no denial of EQUAL PROTECTION in an EXECUTIVE ORDER excluding American citizens of Japanese ancestry from the West Coast. Along the way to this extraordinary conclusion, however, he said: "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny." In Korematsu itself, the Court

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did no such thing; it paid the greatest deference to a "military" judgment that was chiefly political and steeped in racial prejudice. Yet Korematsu 's main doctrinal legacy was that racial classifications were suspect.

In one view, this two-stage analysis, first identifying a classification as suspect and then subjecting it to STRICT SCRUTINY, is a roundabout way of addressing the issue of illicit legislative motives. (See LEGISLATION; WASHINGTON V. DAVIS.) Strict scrutiny is required in order to allay the suspicion that a law was designed to disadvantage a minority that lacked effective power in the legislature. That suspicion is laid to rest only by a showing that the law is well designed to achieve a legitimate purpose that has real importance. In another view, a...

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