Is Strict Scrutiny All It's Cracked Up To Be?

Suppose you were a feminist legal group, and a Genie offered you the chance to elevate gender to the level of a "suspect classification." Gender would receive strict judicial scrutiny, under the same rules and precedents that currently govern racial classifications now. Would you take the deal?

I'm not sure you should. Strict scrutiny isn't all it's cracked up to be. To be sure, intermediate scrutiny -- even in its muscular United States v. Virginia formulation -- doesn't give feminist advocates anything close to everything they want. But for the past few decades at least strict scrutiny has been downright antagonistic to the concerns of racial justice campaigners. Legislators have long since learned that they don't need to classify on the basis of race in order to bring about racially-inegalitarian results. With the exception of Johnson v. California, the Supreme Court since the 1990s has exclusively used strict scrutiny to evaluate (and, mostly, strike down) race-conscious programs meant to benefit marginalized racial groups. Meanwhile, Obergefell did not even address the suspect classification question and still managed to deliver the most sweeping affirmations of gay rights in American history. It might be time to let suspect classification go.

And in theory, that shouldn't be so hard to do. As I argue in a soon-to-be-published article, most of the factors which doctrinally direct whether a classification is deemed suspect -- things like "political powerlessness" or "existence of prejudice" -- are things that vary over time. We give suspect classification, nominally at least, to groups which are so acutely marginalized that they simply cannot protect themselves through normal political channels. When the situation becomes less dire, it stands to reason that suspect status should recede and we should return to the rough-and-tumble of democratic politics. Justice Kennedy's Schuette opinion, which was a stirring ode to the virtues of democratic deliberation regarding even contentious racial questions, would stand as a model -- if it wasn't so flatly contradicted by the Court's Parents Involved decision.

Of course, the Court has never even explored -- much less seriously considered -- the prospect that a classification properly elevated to the ranks of suspect could or should later be "unsuspected." One might attribute that to a straightforward belief that no classification has reached that point yet -- whatever racial progress we've made, it is insufficient to say that we've transcended our history of prejudice or political marginalization. But it is difficult, given the prevailing sentiments of the majority in cases like Parents Involved or Shelby County, to imagine the current Supreme Court making that argument with a straight face. Rather, I think the answer is more simple: much like colorblindness, strict scrutiny allows conservative jurists to achieve most of their racial policy objectives, most of the time. That the underlying doctrine is dissolving into incoherency isn't particularly relevant.

What's less clear is whether the Court's liberal bloc should call the bluff. Most of the progressive attack on colorblindness has been an attempt to carve out "benign" racial classifications from strict scrutiny's ambit. Whatever the intellectual merits of that position, it is clear that it has failed as a legal argument. But what would happen if the liberals simply sought to remove race from the list of suspect classifications outright? That might be a harder doctrinal move to counter (though admittedly I was more enthusiastic about such a strategy a few months ago compared to today. The prospect of a Donald Trump presidency makes me think we might need hard-and-fast rules against racial classifications for more traditional reasons than has been the case in recent history).

Comments

[Guest]

" Descriptively, the criteria we use to assess which classifications are “suspect” are nearly all transient in character." Boy, that "nearly" is sure doing a lot of work.

[David Schraub]

Is it? Discrete and insular minorities can become fully-integrated majorities. Groups burdened by prejudice can become well-liked members of society. The politically powerless can gain political power. Irrelevant traits can gain relevance as social circumstances change. Even immutability is less stable than one might think (social construction of racial categories, sex-reassignment surgery). The only attribute of suspect classification criteria that is even arguably non-transient is a history of discrimination (since the history persists) -- but even that fades over time and loses salience.

[Guest]

Your motivating claim is that the Carolene Products fn 4 factors are debatable. I don't disagree, and neither does the Supreme Court - that's why they debate them in Equal Protection cases. That is a far cry, however, from claiming that whether or not race, national origin, or even homosexuality, for example, are immutable is either debatable or an issue that any Supreme Court would actually debate.

[AnonProf]

Excellent post, David! Please ignore the troll (who clearly doesn't even understand what you're saying).