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Tuesday, May 12, 2009

Judicial Supremacy In a Footnote?

In the spirit of Marc's posting on the footnote to Justice Stevens's dissent in FCC v. Fox TV I'd like to comment on a footnote to Justice Scalia's majority opinion in Heller v. Doe. (Thanks to Andy Hessick at ASU for directing my attention to it at Prawfsfest a couple of weeks ago.)  In footnote 27 to the opinion Justice Scalia criticizes Justice Breyer's suggestion that rational basis review might even be a possible approach to Second Amendment challenges to gun control laws.  (Breyer ultimately rejects that standard, in favor of a vague judicial balancing of interests.)  What's interesting is Justice Scalia's argument against that suggestion, presented here in full, except for some citation details (the bracket is Justice Scalia's):

"Justice BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U.S. ----, ----, 128 S.Ct. 2146, 2153 - 2154, 2008 WL 2329768, *6-7, 170 L.Ed.2d 975 (2008).In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938)(“There may be narrower scope for operation of the presumption of constitutionality [ i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments ...”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."

I'm struck by the offhand statement in this footnote that "'rational basis' is not just the standard of scrutiny, but the very substance of the constitutional guarantee" of equal protection (Engquist is an equal protection case).  It hearkens back to the most aggressive statements of judicial supremacy in the Fourteenth Amendment enforcement power cases from the early part of the decade, Bd of Trustees v. Garrett (2001) and Kimel v. Bd of Regents (2000).  In those cases the Court rejected, respectively, the ADA's and the ADEA's validity as legislation enforcing the Equal Protection Clause.  Most importantly for our purposes, in those cases the Court concluded that its own doctrine according only rational basis reivew to disability and age discrimination furnished the constitutional baseline against which to judge the ADA's and ADEA's congruence and proportionality.

Heller's footnote seems to be of a piece with this approach.  But in a way it's even more aggressive in its rejection of the possibility that judicial doctrine may not fully state constitutional meaning.  At least Garrett and Kimel had the decency to check the factual record compiled by Congress to determine whether the constitutional problem the statute targeted was in fact bigger than what the Court originally thought.  Heller's approach simply equates (1) the equal protection guarantee with (2) a prohibition on irrational laws, and from there with (3) the rational basis standard of judicial review. 

I can understand the equation of (1) and (2): it's not implausible to read equal protection as fundamentally a prohibition on irrational classifications.  But it doesn't follow that the rational basis standard is "the very substance of the constitutional guarantee" represented by (2).  Unless I'm missing something that logic doesn't explain why the Court uses strict scrutiny to review race classifications or intermediate scrutiny to review gender classifications.  Race and gender classifications may be "irrational" in the sense that, say, gender is rarely relevant to a public purpose government can appropriately pursue.  But that doesn't mean that such irrationality is ferreted out by the rational basis test.  And of course, as a matter of fact the Court uses much more than a rational basis test for these types of classifications.

I suspect Justice Scalia knows this.  I wonder if he is using Breyer's argument as a straw man to help cement a Court majority against future enforcement legislation.  After all, in Heller not even Breyer ends up suggesting use of the rational basis standard to review gun control laws.  Scalia just as easily could have avoided discussing equal protection and simply criticized Breyer for suggesting the use of rational basis to review infringements on an enumerated right -- indeed, had he done so he could have retained the cite to Carolene.  Scalia's dissents in Dept of Human Resources v. Hibbs (2003) (upholding the Family and Medical Leave Act as enforcement legislation) and especially Tennessee v. Lane (2004) (upholding application of the ADA's public accommodation provisions as applied to courthouse access) put him at the extreme end of the pre-Roberts & Alito Court with regard to congressional enforcement power.  I wonder if he is attempting to push the new justices toward his point of view.  It might even be that he is laying the groundwork for something that will appear in the Enforcement Power challenge to the Voting Rights Act currently pending before the Court.  It will be interesting to see if anything grows from this newly planted seed of judicial supremacy.

Posted by Bill Araiza on May 12, 2009 at 12:00 AM | Permalink


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