Thursday, February 21, 2013
The Rational Basis Mini-War of OT 1980
Rational basis review often seems to be a stepchild of equal protection scholarship, except when scholars perceive that the court in the given case is really not doing rational basis review at all. (The standard examples of such covert heightened review are City of Cleburne v. Cleburne Living Center and Romer v. Evans.) This decision to largely ignore rationality review is unfortunate. The requirement that government act only in pursuit of a legitimate, public-regarding purpose, and that it be reasonable when it does so, is one of the foundational rules of the Fourteenth Amendment.
Of course, aggressive judicial policing of that requirement triggers allegations of judicial legislating, Lochnerizing, and other epithets. And it's standard learning that, as a historical matter, judicial withdrawal from the practice of second-guessing garden-variety social and economic regulation has included a refusal to engage in serious rationality review -- at least when that review is not a cover for heightened scrutiny, as is often suspected of Cleburne and Romer.
But there's more that can be said, and should be said. Justice Stevens had some creative thoughts about rational basis review, as I discuss in this paper from a couple of years ago. But other justices did, too. Most notably, Justice Brennan and Justice Rehnquist engaged in fascinating little mini-war over the correct approach to rational basis review, and the components of such review, in the OT 1980 term. In December 1980, in Railroad Retirement Bd v. Fritz, the two justices squared off over Justice Brennan's famous description of Justice Rehnquist's extremely deferential style of rationality review as "tautological." The latter's oh-snap conclusion to his footnote engaging Justice Brennan's approach -- "The comments in the dissenting [Brennan] opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion." -- is by itself worth inclusion in a casebook as an exemplar of, to pardon the pun, non-rational argumentation. Still, Justice Rehnquist had a point: Justice Brennan's argument for testing legislation against the legislature's actual purpose created difficult practical and conceptual problems, convincing even an otherwise-sympathetic Justice Stevens to conclude that Brennan's approach was not workable.
The war continued on two fronts that term. In Schweiker v. Wilson, decided in March of 1981, it was Justice Powell's turn to take up the mantle of ratcheting rationality review up a notch. Joined by Justice Brennan, Justice Marshall (who had joined Brennan's Fritz dissent) and the previously-sympathetic Justice Stevens, he essentially agreed with Brennan's argument for heightened fit review when the legislature's goal is not apparent from the legislative history. A few weeks later Justice Brennan himself renewed a version of the fight, in the dormant commerce context. In an opinion concurring in the decision to strike down the Iowa law in Kassel v. Consolidated Freightways, he argued that the law should be evaluated based on the legislature's stated purpose, rather than the purpose furthered by the state's lawyers in litigation defending the law. Again Justice Marshall came with him, but this time he had no other allies. Justice Rehnquist, dissenting, renewed his Fritz attack on this sort of more intrusive review. Again using colorful language, and citing their battle a few months before in Fritz, he wrote that Brennan's argument "calls to mind what was said of the Roman Legions: that they may have lost battles, but they never lost a war, since they never let a war end until they had won it."
But Rehnquist's analogy to the never-say-quit Roman legions seems to have been inapt. The mini-war over rational basis review appears (at least at first glance) to have ended with the OT 1980 term. As discussed in the paper I referenced earlier, Justice Stevens went on to think creatively about garden-variety rational basis review. And remants of the debate resurfaced in cases like Nordlinger v. Hahn. But I'm not sure Justice Brennan ever re-engaged. If my initial impression is correct, this war was intense, and implicated some pretty fundamental issues in American constitutionalism, but burned itself out quickly. Like I said, it has the makings of a fascinating little story.
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F13 in Rehnquist's dissent in Kassel is classic.
"It is not a particularly pleasant task for the author of a dissent joined by two other Members of the Court to take issue with a statement made by the author of a concurrence in that same case which is joined by only one Member of the Court. Such fragmentation, particularly between two opinions neither of which command the adherence of a majority of the Court, cannot help but further unsettle what certainty there may be in the legal principles which govern our decision of Commerce Clause cases such as this and lay a foundation for similar uncertainty in other sorts of constitutional adjudication. Nonetheless, I feel obliged to take up the cudgels, however unwillingly, because JUSTICE BRENNAN's concurrence, joined by JUSTICE MARSHALL, is mistaken not only in its analysis, but also in its efforts to interpret the meaning of today's decision."
[long refutation follows]
Posted by: Joe | Feb 21, 2013 10:35:47 AM