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Publication Date

2013

Abstract

While scholarly work often analyzes the nature and scope
of the Court's tiers of scrutiny approach to enforcing
equality, this Article examines the underlying theory of
equal protection. This Article mounts a challenge to the
theory of higher scrutiny, and, in particular,strict scrutiny.
It seeks to analyze two questions: (1) What principles trigger
heightened scrutiny? and (2) Why does the Court need to
subject laws that discriminate on the basis of race to strict
scrutiny? The first question concerns the underlying theory
of equal protection doctrine: the "what" of higher scrutiny.
Scholarly work that seeks to answer this question rightly
distinguishes between principles of antidifferentiation and
antisubordination, principles that underlie the Court's
threshold decision to impose higher scrutiny. Yet this line
of reasoning fails to realize that the Court endorses neither.
By collapsing a suspect class analysis-a focus on anti-
subordination-with a suspect classification one--a focus
on anti-differentiation, the Court's jurisprudence perverts
both. It points to an inconsistent theory of reviewing
legislation. This is a novel critique of equal protection
doctrine, one that has hithertogone unnoticed.
The second question concerns the purpose or goal of strict
scrutiny: the "why" of such scrutiny. Once we have decided
that strict scrutiny is necessary, what is it meant to
accomplish? Here this Article focuses only on the doctrine
of strict scrutiny. Drawing from case law and John Ely's
classic defense of judicial review, it argues that the answer
to the "why" question is about either remedying democratic
defects of representation or distinguishing between benign
purposes on one hand and racist or nefarious ones on the
other. If this is the why of strict scrutiny, it turns out to be

both too strict and not strict enough. While scholars rightly
criticize the Court for failing to deploy strict scrutiny in
certain cases, namely those where unconscious racism may
be afoot, they do not home in on the cost in deploying it.
This Article argues that strict scrutiny is too strict, because
it invalidates a wide range of laws that seek to better the
status of racial minorities. Framing Justice Harlan's
dissent in Plessy v. Ferguson (1896) in a novel light, it
argues that a rational review analysis is sufficient to do the
distinguishing work in cases where a law facially
discriminates on the basis of race. This Article draws from
the recent decision by the Ninth Circuit Court of Appeals in
Perry v. Brown (9th Cir. 2012) invalidingProposition8, the
California constitutional amendment defining marriage
between a man and a woman, to buttress this claim of the
sufficiency of a rational review analysis. After all, if such a
review can invalidate legislation based on homophobia,
mere hostility to gays and lesbians, it can invalidate
legislation based on racism, mere hostility to racial
minorities. This Article concludes that strict scrutiny, as it
is currently understood, is too blunt an instrument. We
must be careful in deploying it, precisely because it stands
at the center of our dual commitments to democracy and
judicial review.

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