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Thursday, August 13, 2015

But the Poor ARE Politically Powerful ...

For this blog post, I am going to take Supreme Court doctrine seriously.  I know, I know ... naive, laughable, but bear with me.  In the prior post, I described the four criteria for determining which classes are suspect and thus entitled to special judicial protection through the heightened scrutiny of state actions that classify on the basis of the group's status.  The four are: (1) whether members of the class "exhibit obvious, immutable, or distinguishable characteristics that define them as a discrete group;" (the Court adopted this standard in the 1986 case of Lyng v. Castillo) (2) whether members of the class has suffered a history of discrimination; (3) whether the defining characteristic is relevant to an individual's ability to contribute to society; and (4) whether the class has sufficient political power to command the attention of lawmakers.  A quick aside - lower courts and litigants have relied on this standard in determining and litigating whether gays and lesbians are a suspect class.  So the standard does seem to be relevant in actual judicial controversies.     

I am going to take for granted that the poor meet the second and third criteria.  And while some might dispute whether being poor is an obvious or distinguishable characteristic, I'm also going to assume that to be true.  The key criteria that has emerged in judicial suspect class determinations is whether members of the class have political power.  In prior comments, some noted that it has been a long time since the Court has declared a class suspect.  In fact, the Court has never declared a class suspect under the above standard.  Non-citizens were the last class to be declared suspect back in 1971 with the Court merely reasoning that "[a]liens as a class are a prime example of a 'discrete and insular' minority ... for whom such heightened judicial solicitude is appropriate."  In other words, non-citizens were declared a suspect class by judicial fiat.  Two years later in Frontiero v. Richardson, a plurality of the Court determined that women were a suspect class on the basis of the four criteria described above, but the plurality could not secure a fifth vote.  In a later case, a majority ultimately settled on gender being a quasi-suspect classification instead of women being a suspect class.  

So why hasn't a single class been declared suspect under the standard?  Why haven't the poor been declared a suspect class?  The answer can be found in one of the measures of political power that the Court uses.  According to that measure, nearly every group I can think of would be considered sufficiently politically powerful to attract the attention of lawmakers.  Yes, even the poor!

The Court developed this measure of political power in a mid-1980s case Cleburne v. Cleburne Living Center.  In that case, the Court declined to extend suspect class status to the mentally disabled for two reasons.  First, it determined that mental disability is a status relevant to the person's ability to contribute to society.  This was also used as a basis for denying suspect class status to the aged in the late 1970s.  Second, and more importantly, the Court determined that the disabled had political power.  The Court noted that the disabled had benefited from federal and state anti-discrimination laws protecting them and executive actions facilitating the hiring of the mentally disabled into the federal civil service.  Those favorable democratic actions "negate[d] any claim that [members of the class] are politically powerless in the sense that they have no ability to attract the attention of the lawmakers." 

If the measure of political power is whether members of the class have been the beneficiary of past favorable democratic actions, then it is really hard to imagine any class as politically powerless.  Democratic actions have been made in favor of felons, non-citizens, LGBT individuals, the poor ...  Heck, we fought an entire war on behalf of the poor in the 1960s so surely surely they can't be considered politically powerless.  And even if you want to focus more on the present, Congress recently expanded Medicaid in the Affordable Care Act and re-authorized food stamp legislation, presumably in response to the lobbying efforts and desire to be responsive to the politically influential poor. 

Of course, the results of this judicial measure of political power completely contradict social science evidence  cited in my first post suggesting that legislators and legislatures are not at all responsive to the preferences of the poor.  So what gives?  Who has it right?  

This is crucial because political powerlessness is the principal justifiable basis for finding a class suspect and subjecting laws the close judicial scrutiny and usual invalidation.  In my John Hart Ely process theory understanding of the world, the principal judicial role under the Equal Protection Clause is to provide special protection for those groups unable to defend themselves and their interests in democratic politics; to protect the perpetual losers in politics.  The close scrutiny of laws harmful to a politically powerless group provides courts with the tools to assess whether the laws are animated by antipathy or even indifference toward the group.  If the group is politically powerful, then the case for special judicial protection is substantially weaker (although it might still be appropriate in a narrow set of contexts).  Such groups with political power might lose sometimes in democratic politics, but they can presumably protect their interests without judicial intervention. 

There is thus some intuitive appeal to measuring political power according to past favorable democratic actions as it suggests the beneficiaries of those actions are not a perpetual loser in politics, that they are able to attract the attention of lawmakers.  But is that right?  What if these state actions were less in response to the group's political power, and more the product of ideology, morality, or paternalism?  Should that change the judicial calculation?  In the next post, I describe an empirical paper my co-author Su Li and I wrote suggesting that democratic actions favorable to the poor over the past 50 years were not in response to the political power of the poor.  In subsequent posts I will then turn to the reasons some of you have suggested for why the poor should not be treated as a suspect class even if they are politically powerless.      

Posted by Bertrall Ross on August 13, 2015 at 12:43 PM | Permalink


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