INTRODUCTION 1318 I. THE MYTH OF A "TEST" FOR PROTECTED CLASSES 1324 II. THE ERASURE OF MEANINGFUL CASES FROM THE CANON: "PURPORTING" TO APPLY RATIONAL BASIS REVIEW 1335 III. SINGULAR FOCUS ON THE SUPREME COURT, TO THE EXCLUSION OF LOWER AND STATE COURTS AND THE POLITICAL BRANCHES 1341 A. Bans on Same-Sex Marriage 1344 B. The New Jim Crow 1346 C. Economic Liberties Litigation 1351 IV. THE PROBLEM OF OVERSIMPLIFICATION: WHY "ANIMUS DOCTRINE" AND "RATIONAL BASIS WITH BITE" ARE NOT ENOUGH 1356 V. RETHINKING RATIONAL BASIS REVIEW 1365 CONCLUSION 1369 INTRODUCTION
The canonical account of rational basis review under the Equal Protection Clause is familiar. (1) Rational basis review is a form of review that is "almost empty," (2) "enormously deferential," (3) and "meaningless." (4) The plaintiff s burden on rational basis review is "essentially insurmountable," (5) and successful challenges "rare." (6) So deferential is the standard of rational basis review that it is "more often a statement of a conclusion that the law is constitutional than a standard of actual evaluation." (7) In short, the canonical account of rational basis review is a bleak one for those challenging the constitutionality of government action: a doctrine which is extraordinarily deferential and will virtually never result in government action being overturned.
There are some limited exceptions within this narrow account. For example, the modern canon also acknowledges that so-called "animus" doctrine, or "rational basis with bite," can involve a deviation from this exceptionally deferential version of rational basis review. (8) Thus, in certain narrow circumstances--where the Court suspects animus, or where a subordinated group is targeted--it may invalidate government action, even where heightened scrutiny (9) is not applicable. (10) But even here, meaningful applications of rational basis review have been construed as fundamentally distinct from "true" or "traditional" rational basis review; a deviation from the canonical account, rather than a component of it. (11)
This Article suggests that the canonical account of rational basis review is fundamentally incomplete, and thus fundamentally misleading. In fact, rational basis review has--in modern history--constituted one of the principal entry points for social movements seeking to effectuate constitutional change. (12) It has been vital to the ability of social movements to create space for the disruption of the status quo--arguably as vital as the heightened scrutiny doctrines conceptualized as central in canonical constitutional law accounts. (13) Moreover, far from the static, easily categorized doctrine that the canon portrays, rational basis review has in fact been a messy, inconsistent affair, in which courts--especially the lower and state courts that decide most constitutional law cases--have never consistently applied one single doctrinal formulation. (14)
These omissions from the canon are important. Generations of students continue to learn that heightened scrutiny is the path to social movement success and that rational basis review is a weak and fundamentally meaningless form of review. (15) Cases stepping outside of this canonical account are generally characterized as "purporting" to apply rational basis review or as falling within some other narrow exception. (15) The true diversity of approaches and outcomes on rational basis review--and the actual role it has played in contemporary social movements' success--is thus largely absent from the standard accounts that students--our future lawyers, judges, and politicians--study and absorb. (17)
This Article seeks to begin a conversation about how the canon of rational basis review could be reimagined in a way that more accurately represents its actual role in the process of constitutional change. (18) In order to do so, it identifies and describes four ways that the contemporary canon mis-describes or distorts the actual practice and outcomes of rational basis review in modern legal history: (1) by misdescribing how contemporary social movements actually achieve meaningful scrutiny under the Equal Protection Clause (which, contra canonical accounts, since the 1970s has virtually always been through the gateway of rational basis review); (19) (2) by recharacterizing robust rational basis cases as only "purporting" to apply rational basis review; (20) (3) by ignoring the vast majority of constitutional litigation, which goes on in the lower and state courts, as well as by ignoring constitutional change in the legislative and executive branches; (21) and (4) by oversimplifying and thus narrowly cabining any acknowledgment of more meaningful forms of rational basis review. (22)
This Article contends that, collectively, revising these ways of understanding rational basis review would paint a far different picture than the canonical account we have today. Rather than a uniformly weak and ineffectual doctrine, rational basis review would be understood as a varying and variegated doctrine; a "persistently]... confus[ed]" (23) area of the law that social movements have repeatedly mined successfully to create initial entry points for constitutional change. (24) Although heightened scrutiny might still be understood as the ultimate mark of social movement success, rational basis review would (accurately) be situated as the initial means by which most modern social movements undermine existing understandings and create pathways to change. (25) Moreover, rather than a single narrow pathway out of ultradeferential review (such as animus doctrine), rational basis review would be understood as offering an array of possibilities to social movements (and judges) in conceptualizing why--even under the lowest level of review--certain forms of group-categorizing or group-burdening government action must fail. (26)
This Article proceeds in five parts. Parts I-IV describe the four ways in which the canonical account of rational basis review misdescribes or distorts our understanding of the contemporary cases decided under the minimum tier (27) of equal protection review. Part I suggests that the canonical account of how "protected classes" are made--via a "test" for immutability, political powerlessness, history of discrimination, and relevance to ability to contribute--is descriptively inaccurate and has erased from the constitutional canon the important role that rational basis review has played for most modern social movements in achieving meaningful equal protection review. Part II turns to the pervasive tendency within the canon to exclude any rational basis cases applying meaningful scrutiny through omission, skepticism, and separate categorization, arguing that such exclusion is erroneous and fails to take seriously the actual practice of rational basis review. Part III takes up a widespread problem of the constitutional canon generally: its exclusive focus on the Supreme Court and failure to account for the arenas in which most constitutional change occurs, i.e., the lower and state courts, in conversation with the political branches. Part IV describes the existing ways that the canon does account for more meaningful rational basis review ("rational basis with bite" and "animus doctrine"), and suggests that, as canonized, both are descriptively misleading and substantively problematic. Finally, Part V discusses how taking seriously the aforementioned critiques would shift our understanding of rational basis review and how such a revised understanding could fundamentally alter our canonical accounts of how social movements make constitutional change.
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Three caveats are in order before proceeding to the substance of the discussion. First, I should be clear that this Article critiques and seeks to challenge the canon, i.e., the collective common wisdom about rational basis review, rather than any particular casebook, treatise, or scholar. Many scholars have offered more nuanced accounts of rational basis review, and yet the misleading and oversimplified canonical account presented herein remains. (28) The challenge this Article presents is to take seriously the ways that the canon errs and endeavor to remake our central account of rational basis review.
Second, I note that although the constitutional canon often presumes that doctrine is static, in fact doctrine inevitably fluctuates over time. (29) Specifically, as to rational basis review, there has been variation in the availability of meaningful rational basis review: as emerging social movements gain credence, their use of rational basis review tends to expand opportunities--both for their own litigation priorities, and also for others to access more meaningful minimum-tier review. (30) Thus, although I critique the canon on its own terms herein--as a fixed picture of the doctrine--one could further critique the canon for its failure to account for the ever-changing nature of the doctrine in response to social movement forces. (31)
Finally, although this Article suggests a fundamental rethinking of the value of rational basis review, its message is not that rational basis review is a panacea for social movement efforts to achieve equality. As many other scholars have observed, there are serious limitations to the operation of equal protection doctrine generally as an engine of equality, and rational basis review is certainly no exception. There are many times that the courts indeed do apply the "almost empty," (32) "enormously deferential" (33) version of rational basis review that the canon portrays. Thus, rational basis review, like heightened scrutiny, is no "silver bullet" for groups seeking constitutional change. Rather, it is one tool--and this Article suggests, contra the canon, an important one--for social movements seeking constitutional transformation.
THE MYTH OF A "TEST" FOR PROTECTED CLASSES
The equal protection canon has long embraced the myth of a "test"...