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Monday, August 10, 2015

The Curious Case of the Suspect De-Classification of Wealth

The last episode left off with a cliff hanger of sorts: a foreign LLM student in my Con Law class asked me why we never discussed economic class and the poor?  I followed up with a question in the last blog asking why we as legal scholars do not engage class and the poor more than we do now.  One response is that legal scholarship tends to follow what the Supreme Court does.  Since the Supreme Court rarely engages economic class and the poor, neither do most legal scholars.  But why doesn't the Supreme Court address controversies involving economic class and the poor? Focusing more narrowly on equal protection doctrine, I explained to my student that we do not engage economic class and the poor because wealth is not a suspect classification and the poor are not a suspect class.  The Court only applies a very deferential rational basis review to laws that classify on the basis of wealth and there just isn't much interesting to say about rational basis review unless, of course, the review has some bite to it. This is where I show my students the famous Val Kilmer bite in Top Gun, if you don't know the scene involving Maverick and Iceman you need to check it out ... that, my friends, is the bite of rational basis review with bite.  So my answer to the student was a very simple, unsophisticated hornbook one, but one that I thought was right.  

But then the student asked: why aren't the poor treated as a suspect class?  She went through the criteria for determining a suspect class established in case law and argued that they all would be satisfied.  (1) The poor arguably share obvious or distinguishable characteristics based on where they live and what they possess (I teach that immutability has faded as a relevant criteria in light of the alienage cases and subsequent judicial broadening of the criteria to include the obvious or distinguishable nature of the trait); (2) the poor have suffered a history of discrimination; (3) being poor is not relevant to a person's ability to contribute to society (a criteria the Court used to reject claims that the disabled and the aged made for suspect class status); and (4) the poor are politically powerless.  I pushed back on each of these points, but I ultimately agreed with the student.  I then explained that the Court in San Antonio Independent School Districts v. Rodriguez declared that wealth was not a suspect classification and I encouraged her to read the case for herself as the reasoning for this determination would be provided there.  I then decided read the case for myself and discovered something quite curious.   

The Court in Rodriguez never declared that wealth was not a suspect classification.  In the case, residents of a property-tax poor school district brought an equal protection challenge to a school financing system that apportioned money to school districts on the basis of property taxes.  The challengers relying on an earlier Supreme Court case in which the Court declared that "lines drawn on the basis of wealth or property, like those of race or traditionally disfavored," claimed that the school finance system discriminated against a suspect class, the poor, and should be subject to strict scrutiny.  The Court disagreed, but not because it determined that wealth was not a suspect classification.   Instead, the Court explained that the school financing system did not actually classify on the basis of wealth.  According to the majority, the challengers "made no effort to demonstrate that [the school financing system] operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level."  The Court, therefore, did not need to decide whether the poor were a suspect class. 

The decision was not entirely devoid of a suspect class determination.  The Court did hold that the challengers' claim that the law discriminated "against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts," involved a class that was too large, diverse, and amorphous to be considered suspect.  In other words, residents of a property-tax poor district, which included wealthy, middle class, and poor individuals, would not be considered a suspect class.  I re-read the case a second time, a third time, and was left floored.  How I understood the case contradicted assertions in a leading Constitutional Law casebook, Constitutional Law hornbook, and several law review articles.  Why do leading scholars cite to Rodriguez as denying suspect classification status to wealth when it never did any such thing?  Is it still an open question?

But then I read cases that cited Rodriguez and what I found was even more curious.  In the case of Maher v. Roe decided four years after Rodriguez, the Court citing to Rodriguez asserted that it "ha[d] never held that financial need alone identifies a suspect class for purposes of equal protection analysis."  All true, but ultimately unresponsive to the question of whether the poor are a suspect class.  Then in the case of Harris v. McRae decided three years after Maher, the Court without any reasoning and citing only to Maher concluded "poverty, standing alone, is not a suspect classification."  And that is end of the story of wealth as a suspect classification.  

Since establishing the suspect class standard in 1973, the Court has denied every group's claim to suspect class status.  But it has never treated any group's claim in the same superficial and disingenuous manner as it treated the claim of the poor.  Why is that the case and more importantly, perhaps, why have Constitutional Law scholars, for the most part, accepted the judicial denial of suspect class status to the poor premised on nothing more than judicial fiat?  Is the cynical answer provided to my prior post the right one - that the problems of the bottom 5% (or perhaps bottom 20%) aren't terribly pressing for those in the top 5%?   

Posted by Bertrall Ross on August 10, 2015 at 01:15 PM in Constitutional thoughts | Permalink


Larry Rosenthal wrote on Aug 10,
"The benefit v. affirmative burden argument is made, but the differentiation with Sherbert v. Verner is to me somewhat question begging. Medicaid is for health care. A certain type of health care deemed a fundamental right was denied. Should it 'depend on the amount of money she has'?"

It is commonly accepted now that those with more money will get better health care - and not just in access to abortion. It appears that the case of Rodriguez has been held up as an example not because of any particular merit but because it is useful in maintaining the status quo - an easy way out. I have discovered some resistance, too, to a case I am involved with, at HRTO as an applicant. Alleging discrimination on the grounds of sex, family and marital status and age, it seems to me I may have been judged on another aspect not listed - not having much money. If I were an old, wealthy, single property-owner I wonder if I might have escaped this unfortunate situation with an uncaring family doctor who assumed I was either a drug user or at great risk of abusing Tylenol 2. I have been writing about it on my blog, Sue's Views on the News.

Posted by: Sue McPherson | Aug 26, 2015 8:29:31 PM

Citizens United and so on have made it harder for those who aren't rich, much less those who are poor, to have influence on who is elected or to get a hearing from elected officials.

According to recent social science research, mobility between economic classes is lower in the United States than in traditionally class riven European countries

In at least one Scandanavian country, fines for drunk driving are based on a percentage of either income or wealth (my source is a newspaper article, not a review of the laws of that country, so I'm not sure exactly how that system works). Fines and fees that are in a fixed nominal amount might not survive any level of scrutiny greater than rational basis, since the deterrent effect of a $100 fine on a wealthy offender is clearly much less than on a poor one.

If you haven't reread it recently, read United States v. Kras, in which Justice Blackmun held that it was just fine that a debtor couldn't get the filing fee for a bankruptcy waived. Decision was 5-4. Justices Steward, Douglas, Brennan and Marshall dissented. In this area, Congress decided to allow fee waivers for Chapter 7 bankruptcy cases, but (re)reading the dissents was thought provoking.

Posted by: David Yen | Aug 13, 2015 7:13:19 PM

In the Legal Services community we've generally looked back with anger on Dandridge v. Williams, 397 U.S. 471 (1970), which says that

In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 220 U. S. 78.

* * *

To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have, in the main, involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard.fn

fn17. It is important to note that there is no contention that the Maryland regulation is infected with a racially discriminatory purpose or effect such as to make it inherently suspect. Cf. McLaughlin v. Florida, 379 U. S. 184.


For Alaskans, the good that came out of Dandridge v. Williams was that Justice Marshall's dissent helped prompt the Alaska Supreme Court to adopt a sliding-scale equal protection test for state constitutional claims.

Maybe the recent confusion in federal equal protection doctrine, with the conservatives arguing for stricter than reasonable basis review for economic regulations, will allow courts to treat low-income people at least as well as they treat small businesses?

Posted by: Mark Regan | Aug 12, 2015 1:08:58 PM

A basic reason wealth has been not labeled as a suspect classification, even though the courts in various cases was concerned about it leading to burdens of rights, is a belief in our capitalistic society that it is a legitimate classification.

In "The Brethren," the authors noted this is one reason Justice Stewart didn't go along with the dissent in the Rodriguez case. OTOH, I think some justices don't want to bluntly say this when the result is that the poor are deprived of certain rights and benefits. But, it's in the background.

Posted by: Joe | Aug 11, 2015 7:46:47 PM

I agree with some of the points above about how levels of scrutiny/ "suspectness" of a class may not really be the law anymore. But surely it was at the time of Rodriguez. Bertrall, when do you think "immutability" faded as a standard? Was the idea of pulling oneself out of poverty more real in the 1970s? Was there a more robust understanding of the idea that a whole class of poor people could become middle class?

Posted by: anon | Aug 11, 2015 7:41:06 PM

Great points Sam and I will redress some of them in a later post. But just in response to two points. Lower courts wrestling with the question of the suspect class status of LGBT members have treated the indicia of suspectness as a real doctrinal standard. Of course, many doctrinal standards are formulas, but these cases indicate that the lower courts, at least, think these standards matter and are not merely hornbook statements of the law. In addition to lower court opinions, litigants in cases like Windsor treat the suspect class standard as if it matters. In the briefs to that case, the litigants engaged in a robust debate about whether gays and lesbians are a suspect class focusing on the immutability and political power criteria.

On the second point about whether treating the poor as a suspect class would change anything on the ground, I agree that there are very few laws that classify on the basis of poverty, per se. There are certainly no laws saying that the poor cannot serve on juries, for example. But there are many laws that classify on the basis of wealth. Any government imposition of fees on goods or services, such as college or law school tuition, could qualify as a wealth classification that harm the poor. There are also, as you suggest, other state actions that provide the poor with benefits on the basis of their wealth status (or lack thereof) such as food stamps, Medicaid, and welfare. One of the responses that I have seen in the posts above is that we surely do not want the court closely scrutinizing every government imposition of fees, reduction of government benefits on the basis of income criteria or increases in taxes on the basis of income criteria. Another concern involves the court closely scrutinizing the provision of benefits to the poor. I will address each of these important points in a future post.

Finally, I agree with you on the judicial treatment of the disabled so consider this an amendment to the reference in the blog post that the disabled have it the worst off. Other group's claims have been treated similarly shabbily by the Court.

Posted by: Bertrall Ross | Aug 11, 2015 2:19:15 PM

My first reaction to this post is to say that it's too formalistic to take the supposed indicia of suspectness as really identifying a doctrinal test of any kind. I know what the hornbooks say, but the fact that the Court has gone so long without identifying a new suspect class should clue us in that the hornbook statement is not "the law."

I'd also say that the Court has treated disability in every bit as much of "a superficial and disingenuous manner as it has treated the claims of the poor." See Garrett.

Finally, if we think of Rodriguez as the Washington v. Davis of wealth classifications, does anything change on the ground? So poverty could well be a suspect class, but what statutes classify based on poverty as opposed to other criteria that correlate with poverty? How many of those give poor people something richer people don't have?

Posted by: Sam Bagenstos | Aug 11, 2015 1:38:49 PM

"The decision was not entirely devoid of a suspect class determination. The Court did hold that the challengers' claim that the law discriminated "against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts," involved a class that was too large, diverse, and amorphous to be considered suspect. In other words, residents of a property-tax poor district, which included wealthy, middle class, and poor individuals, would not be considered a suspect class. I re-read the case a second time, a third time, and was left floored. How I understood the case contradicted assertions in a leading Constitutional Law casebook, Constitutional Law hornbook, and several law review articles. Why do leading scholars cite to Rodriguez as denying suspect classification status to wealth when it never did any such thing? Is it still an open question?"

You're correct to wonder. Except that's how the world works: An assertion's made, accepted, repeated, never verified as correct in the first place.

Posted by: Mitchell | Aug 11, 2015 6:14:29 AM

What was the last time the Court found a classification suspect or quasi-suspect? Early 1980s?

Particularly after what happened from Romers to Obergefell, I think it is fair to say that at the cases dealing with whether or not a particular classification is suspect or quasi-suspect are limited to their facts and the doctrine itself moribund.

Posted by: Brad | Aug 11, 2015 12:23:04 AM

Go back a little bit farther, to the Court's 1971 opinion in Boddie v. Connecticut, 401 US 371 (the state may not deny divorces to people who are too poor to pay the filing fee), which it decided on due process grounds, and read the concurrences of Justices Brennan and Douglas, who wrote that they would have also applied the equal protection clause to affirm the right of the poor to get divorces. Justice Douglas cited Smith v. Bennett, 365 US 708 (1961), in which he said the Court "held that requiring indigents to pay filing fees before a writ of habeas corpus could be considered in state court was invalid under the Equal Protection Clause." The money quote (so to speak) from the Smith opinion is: "We hold that to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws." Although the Court limited its holding to convicted prisoners who sought a writ of habeas corpus, the thread is there, awaiting rediscovery.

Posted by: Isaac Laquedem | Aug 10, 2015 10:57:16 PM

I take it even in the "market economy" that wealth can be shown to be an illegal discrimination in various ways. This doesn't mean it is always a problem. Perhaps, this suggests wealth should be treated with intermediate scrutiny. But, this doesn't stop scrutiny from having bite. Alienage, e.g., can be a just classification for various things such as voting.

I apologize as well to not finding the theft hypo the least bit credible. Again, scrutiny here isn't absolute. Theft laws protect property rights. Racial minorities aren't allowed to steal to even the race playing field. Phrased that way it is almost offensive, but perhaps I'm missing something there.

Posted by: Joe | Aug 10, 2015 9:37:19 PM

As noted, e.g., by Justice Marshall in his dissent in James v. Valtierra, "classification on the basis of poverty" was deemed problematic in various cases. The cited cases suggest an equal protection/fundamental right synergy here akin to Obergfell v. Hodges. There was room, if the justices wished to take it, to go further.

Harper v. Virginia Bd of Elections: "Lines drawn on the basis of wealth or property, like those of race are traditionally disfavored." Such language sounds like wealth alone, not its classification when a fundamental right is at stake, is a suspect classification.

"For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has." Griffin v. Illinois. (The principle decades later in the civil context: M.L.B. v. S.L.J. [1996])

Harris v. McRae could have applied this to abortion rights. The benefit v. affirmative burden argument is made, but the differentiation with Sherbert v. Verner is to me somewhat question begging. Medicaid is for health care. A certain type of health care deemed a fundamental right was denied. Should it "depend on the amount of money she has"?

If religious exercise can be a special reason to take a day off from work without denial of unemployment benefits, is it not an unconstitutional burden on the poor to deny those who choose abortion? At least, it requires a close weighing that the dissents there provide a better argument for in the end imho. If our current administrative state warrants religious exemptions in this area, giving the poor funds for equal justice, the rights of abortion choice should hold too.

Perhaps, the is a way to temper the failure of suspect class status as to wealth. It is a tad ironic that given the Equal Protection Clause is particularly concerned with avoid "caste" that wealth is not firmly seen as a suspect classification. Still, I think there is a sense of the personal characteristic. Wealth is not that in the sense of the others, even though realistically it very well can be so understood.

The usual suspects are race, alienage (closely tied to race), sex, perhaps sexual orientation, illegitimacy and the like. Wealth is not personal; we don't have a formal nobility in this country. Another failed suspect class is disability, but again, that is a personal characteristic, even if "immutable" is defined broadly.

Posted by: Joe | Aug 10, 2015 9:28:09 PM

How, I wonder, could you make "financial need" a suspect classification in a market economy? Wouldn't this effectively means that the government couldn't price anything, whether tuition at a public university, or imposing any kind of tax that other than one somehow apportioned by ability to pay? Would the government also be forbidden to enforce private pricing schemes, e.g., would the theft laws fall as applied to those who steal what they can't afford? I had always thought that the suspect class doctrine was an effort to identify proxies for the presence of unjustified discrimination, and in a market economy, discrimination, at least in the form of pricing in its many manifestations, is generally regarded as justified. If I am wrong, however, then please explain to me what a jurisprudence would look like that would regard poverty as a suspect classification any yet not invalidate the government's ability to apportion goods based on ability to pay as a market economy must do.

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | Aug 10, 2015 9:01:23 PM

Is this because of the consequences (at least in the 1970s) of designating something a suspect class? Many, many classifications are made based on wealth. I'm not eligible for public housing because of my income. Surely that would survive strict scrutiny, but do we want to subject every government decision like that to strict scrutiny? The gradations in the tax code are pretty minute, and maybe the Supreme Court worried about the small distinctions in wealth that might indeed be arbitrary and whether these would survive judicial scrutiny. Do you think this has something to so with the infinite number of gradations in wealth, which is not the same with other suspect classifications?

Posted by: anon | Aug 10, 2015 7:41:29 PM

Thanks Former Editor for the note on the citation to James v. Valtierra, I will engage that in a future post.

Thanks also for your comment Ron. I will need a little more context for your point about individual liberty. But on the specific genetics point, one thing to account for is the fact that the Supreme Court has determined that non-citizens are the paradigmatic discrete and insular (suspect) class. I am confident that this determination had nothing to do with genetics. Rather, being a non-citizen is a product of external circumstances that can be changed (albeit through a difficult, time-consuming process). Following from Carolene Products Footnote 4 and John Hart Ely, I understand the question of discrete and insular status (the basis for the suspect class determination) as being premised on whether members of the class need judicial protection from democratic politics. Non-citizens cannot vote and cannot be expected to protect themselves in democratic politics so courts have provided special protection for the group through the close scrutiny of state actions harmful to non-citizens (with some exceptions). Now the poor are different in that they can vote, but as my previous post indicated, social science scholarship suggests that elected actors nonetheless do not respond to their preferences. If marginalization from democratic politics is the touchstone for suspect class status, as I think it is, it is not clear what differentiates non-citizens from the poor.

So in answer to your question about genetics, no I don't want to go there. But I also don't think I need to either. While some focus has been placed on the immutability criteria in the suspect class determination (which perhaps has a genetic link), as indicated in my post, I just don't think that immutability is particularly relevant anymore.

Posted by: Bertrall Ross | Aug 10, 2015 5:57:21 PM

Poor aren't a suspect class because they have no money...duh.

Posted by: anon | Aug 10, 2015 5:44:54 PM

Don't you think it has something to do with individual liberty, the foundational concept of the entire system? Suspect classes are suspect, but with us; they are based on genetics, which cannot be controlled, rather than external circumstances, which can be controlled unless the poor are poor because they are genetically inferior--do you really want to go there?

Posted by: Ron | Aug 10, 2015 5:21:10 PM

Harris also cited to James v. Valtierra, 402 U.S. 137 (1971) (as did the Stewart concurrence, and White and Marshall dissents in San Antonio School District). I'm not sure the additional cite adds much to Maher's reasoning, and if you look at the Brennan dissent in that case it may actually help your overall argument, but it merits mention, I think.

Posted by: Former Editor | Aug 10, 2015 2:08:24 PM

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