history help?

Question

i need examples of supreme court cases that explain the equal portection clause and constitutional standards of review

Answer 1

Chapter 9

EQUAL PROTECTION

SECTION 1. AN OVERVIEW

Introduction. We now turn to the range of complex problems raised by the simple sounding command of the 14th Amendment that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Presumably, that command cannot mean that laws must deal in the same way with everyone. Almost all laws classify (or "discriminate") by imposing special burdens or granting special benefits to some people and not to others. But if legislation almost in its nature classifies, what content can be given to the equal protection guarantee? In its efforts to divine meanings, the Court has constructed a morass of doctrines, tried to identify types of situations warranting different degrees of judicial scrutiny (from the most deferential to the strictest), and purported to find in equal protection a range of specially protected fundamental values. The purpose of this introductory overview is to provide a rough road map through the maze. It surveys the historical changes in the significance of the equal protection clause; it outlines the most commonly invoked doctrinal tools, particularly the Court's efforts to delineate the occasions for varying levels (or "tiers") of judicial scrutiny of governmen‚tal actions; and it calls preliminary attention to some recurrent problems regarding the central content of constitutionally protected equality.

It may be surprising that, more than a century after the adoption of the 14th Amendment, the question of the inherent content of equal protection continues to be a subject of intense debate. In fact, the issue is very much in controversy. The strongest consensus about the meaning of equal protection is drawn from its historical origins: at the very least it was directed at racial discrimination against blacks. What, if anything, beyond that concern can equal protection be fairly read to include? In the earliest interpretation of the 14th Amendment, in the Slaughter House Cases (1873; p. 400 above), the Court suggested that the racial concern exhausted the meaning of the clause. (Even in the area of race discrimination, controversies about the meaning and scope of the clause abound, as sec. 3 demonstrates.) Beyond this widely agreed upon core, the widest agreement concerns the notion that equal protection imposes a variation of the "rationality" requirement already encountered in the examination of due process in sec. 1 of chap. 8. A classification, the argument goes, must be reasonably related to the purpose of the legislation. But even that widely supported minimum is not universally accepted; and those who support the existence of the rationality requirement disagree sharply about what it should mean in terms of judicial scrutiny of legislative action.

Beyond these points of quite wide consensus, equal protection is an embattled terrain. Particularly controversial are the modern Court's efforts to find some fundamental values inherent in equal protection. Can equal protection be viewed as an independent source of fundamental rights, or must all fundamental rights be traceable to some other constitutional source, such as the First Amendment or substantive due process? One contemporary scholar has stirred a wide debate with his assertion that equality is an "empty idea." I Another has asked whether equal protection is really like Oakland (borrowing Gertrude Stein's quip that the trouble with Oakland is that "there is no there there").' These opening notes are designed to introduce the pervasive questions. The complexity of the questions raised can best be that follows, and a return appreciated in the context of the fuller exploration to these introductory materials may be worthwhile after that exploration is concluded.'

1. Modest origins: The "old equal protection" in the pre Warren Court years. Traditionally, equal protection supported only minimal judicial intervention in most contexts. Ordinarily, the command of equal protection was only that government must not impose differences in treatment "except upon some reasonable differentiation fairly related to the object of regulation," as Justice Jackson put it in the Railway Express case, p. 612 below. That "old" variety of equal protection scrutiny focused on the means used by the legislature: it insisted merely that the classification in the statute reasonably relate to the legislative purpose. Unlike substantive due process, equal protection scrutiny was not typically concerned with identifying "fundamental values" and restraining legislative ends. And usually that rational classification requirement was readily satisfied: the courts did not demand a tight fit between classification and purpose; perfect congruence between means and ends was not required; judges allowed legislators flexibility to act on the basis of broadly accurate generalizations and tolerated considerable overinclusiveness and underinclusiveness in classification schemes. Only in special, limited contexts was equal protection found to have a deeper bite during most of its history most notably in racial discrimination cases.

During the early 20th century era of extensive Court interference with state economic legislation, it was usually due process, not equal protection, that provided the cutting edge. Thus, at the height of the Lochner era, Justice Holmes referred to equal protection as "the usual last resort of constitutional arguments." 4 Another comment, by Justice Jackson in the Railway Express case, also reflects the relatively narrow intrusion into the legislative domain traditionally associated with equal protection: "Invalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable. Invocation of the equal protection clause, on the other hand, does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact." What Justice Jackson there emphasized is that the "old" equal protection ordinarily focused solely on legislative means, on the rationality of classifications, not on legislative objectives. Although due process also has a rational means" ingredient, it is more commonly associated with restraints on legislative ends, in the era of Roe as well as of Lochner.

2. From marginal intervention to major cutting edge: The Warren Court's "new equal protection" and the two‑tier approach. From its tradition‚al modest role, equal protection burgeoned into a major interventionist tool during the Warren era, especially in the 1960s. The Warren Court did not abandon the deferential ingredients of the old equal protection: in most areas of economic and social legislation, the demands imposed by equal protection remained minimal. Indeed, the Warren Court's hands off stance was even more lenient than that of its predecessors. But the Court launched an equal protection revolution by finding large new areas for strict rather than deferential scrutiny. A sharply differentiated two tier approach evolved by the late 1960s: in addition to the deferential "old" equal protection, a "new" equal protection, connoting strict scrutiny, arose: "The Warren Court em‚ braced a rigid two tier attitude. Some situations evoked the aggressive 'new' equal protection, with scrutiny that was 'strict' in theory and fatal in fact; in other contexts, the deferential 'old' equal protection reigned, with minimal scrutiny in theory and virtually none in fact." 6 The intensive review associated with the new equal protection imposed two demands a demand not only as to means but also as to ends. Legislation qualifying for strict scrutiny required a far closer fit between classification and statutory purpose than the rough and ready flexibility traditionally tolerated by the old equal protection: means had to be shown "necessary" to achieve statutory ends, not merely "reasonably related." Moreover, equal protection became a source of ends scrutiny as well: legislation in the areas of the new equal protection had to be justified by "compelling" state interests, not merely the wide spectrum of "legitimate" state ends.

The Warren Court identified the areas appropriate for strict scrutiny by searching for two characteristics: the presence of a "suspect" classification; or an impact on "fundamental" rights or interests. In the category of "suspect classifications," the Warren Court's major contribution was to intensify the strict scrutiny in the traditionally interventionist area of racial classifications. But tantalizing statements also suggested that there might be other suspect categories as well: illegitimacy and wealth, for example. But it was the "fundamental interests" ingredient of the new equal protection that proved particularly dynamic, open ended, and amorphous: "It was the ele‚ment that bore the closest resemblance to freewheeling substantive due process, for it circumscribed legislative choices in the name of newly articulated values that lacked clear support in constitutional text and history. The list of interests identified as fundamental by the Warren Court was in fact quite modest: voting, criminal appeals, and the right of interstate travel were the prime examples. But in the extraordinary amount of commentary that followed, analysts searching for justifications for those enshrinements were understandably tempted to ponder analogous spheres that might similarly qualify. Welfare benefits, exclusionary zoning, municipal services and school financing came to be the most inviting frontiers."

3 The post Warren Court years and equal protection. In more recent years, there has been neither undiminished carrying forward nor wholesale turning back of the Warren Court approach. The response has been more complex. In form, the two tier distinction between new, strict scrutiny and old, deferential review equal protection persists. In fact, the modern exercises of review in equal protection cases do not conform to that simple, bifurcated pattern. A summary of the early years of the Burger era stated, in terms that continue largely valid: "(1) The Burger Court is reluctant to expand the scope of the new equal protection, although its best established ingredients retain vitality. (2) There is mounting discontent with the rigid two tier formulations of the Warren Court's equal protection doctrine. (3) The Court is prepared to use the clause as an interventionist tool without resorting to the strict scrutiny language of the new equal protection."'

a. Blocking the expansion of the "new" equal protection. The Burger Court's "thus far and no further" approach to the "new" equal protection has been especially notable with respect to the most amorphous aspect of Warren Court doctrine: the use of strict scrutiny where "fundamental interests" were affected. Those inclined to read Warren Court decisions most broadly had perceived in equal protection a potential tool on a wide front: there were suggesstions that all legislation impinging on "necessities" (welfare, housing, education, etc.) might be subjected to strict scrutiny. Those hopes (or fears) did not materialize, perhaps in part because the Warren Court's doctrinal legacy was least well fixed in those areas.8 But refusal to expand has not meant that the Burger Court has scuttled the new equal protection. Its best established strands survive, as in the area of the fundamental interests in voting and access to the ballot. With respect to classifications, indeed, the Burger Court has not only maintained strict scrutiny of racial criteria but has added to the list of classifications triggering at least some heightened scrutiny those based on sex, alienage and illegitimacy.

b. The unsettled state of modern equal protection doctrine. The discon‚tent with two-tier formulations and the groping for new standards. Even while the two-tier scheme has often been adhered to in form, there has also been an increasingly noticeable resistance to the sharp difference between deferential "old" and interventionist "new" equal protection. A number of Justices, from all segments of the Court, have sought formulations that would blur the sharp distinctions of the two tiered approach or that would narrow the gap between strict scrutiny and deferential review. That mounting discontent with the two tier scheme has sometimes been manifested in claims that a single standard applies to all equal protection cases.9 But the most elaborate attacks on the two-tier notion have come from Justice Marshall. His frequently stated position was developed most elaborately in his dissent in Rodriguez (1973; p. 820 below): "The Court apparently seeks to establish [that] equal protection cases fall into one of two neat categories which dictate the appropriate standard of review-strict scrutiny or mere rationality. But this Court's [decisions] defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn."

Justice Marshall's "sliding scale" approach may describe many of the modern decisions, but it is a formulation that the majority has refused to embrace. But the modern Court's results indicate at least two significant changes in equal protection law. First, invocation of the old" equal protection formula no longer signals, as it did with the Warren Court, an extreme deference to legislative classifications and a virtually automatic validation of challenged statutes. Instead, several cases, even while voicing the minimal "rationality," "hands-off' standards of the old equal protection, proceed to find the statute unconstitutional: for the first time in years, old equal protection standards occasionally mean something other than perfunctory opinions sustaining the law under attack. Occasionally, moreover, reformulations of "mere rationality" standards hint at increased bite to the scrutiny."

Second, in some areas the modern Court has put forth standards for equal protection review that, while clearly more intensive than the deference of the "old" equal protection, are less demanding than the strictness of the "new" equal protection. Sex discrimination is the best established example of this "intermediate" level of review. Thus, in Craig v. Boren (1976; p. 661 below), the majority was able to agree that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." That standard is "intermediate" with respect to both ends and means: where ends must be "compelling'' to survive strict scrutiny and merely "legitimate" under the "old" mode "important" objectives are required here; and where means must be '"necessary' under the flew 11 equal protection, and merely "rationally related" under the "old" equal protection, they must be "substantially related" to survive the "intermediate" level of review (There have been similar but far more erratic efforts to prescribe something in between the old and the new equal protection with respect to other classifications as well.)



4. Modern equal protection: Summary and challenge. Equal protection is in flux. Clearly, it has come a long way from being the "last resort of constitutional arguments"; instead, it is a prolific source of modern constitutional litigation. The Warren Court created a relatively clear, if not always well explained and justified, two-tiered approach. The gropings for new formulations by all wings of the post-Warren Court make for less clear doctrine: two-tiered analysis has not been formally abandoned, but the intensity of review under the lower tier has occasionally been sharpened, and varieties of intermediate levels of scrutiny have surfaced. At the end of the 1970s, the Court seemed to be retreating toward great deference for most varieties of economic and social legislation (e.g., Vance v. Bradley [1979; p. 624 below] ), yet by the 1980s there remained ample basis for the widespread and justified charge that the modern Court's exercise of equal protection review has been erratic. Is the modern Court's variety of equal protection simply an accumulation of ad hoc interventions? Is it most intelligible via Justice Marshall's sliding scale analysis? Does it offer promise for evolution toward a different variety of two-tier analysis, retaining the well established ingredients of the new equal protection and its strict scrutiny, but raising the level of scrutiny appropriate in the "old" equal protection sphere?

The search for coherence in the volatile, sometimes chaotic field of equal protection law, then, is the challenge-not only for the Court, but also in the examination of the materials that follow. Those materials reveal a doctrinal landscape strewn with not always reconcilable fragments. The doctrinal strands touched on in this introduction are examined at greater length in a variety of settings below. The recurrent questions are: Do the individual strands make sense'? Do they provide ingredients for a coherent whole? Or is equal protection doctrine simply the modern Justices' garb for judicially selected value infusions, for Lochnerizing without wearing the occasionally discredited mantle of substantive due process?‚‚12

5. Does equal protection protect core values of its own? Once one gets beyond the hostility to racial discrimination, is it possible to identify a value or a set of values that the constitutional equality principle is designed to implement? This question is a pervasive one in the materials that follow. The terms of the clause extend beyond the race background, and its applica‚tions similarly have gone well beyond. Value judgments underlie many of the I decisions below, and not only those in the materials (in sec. 4) dealing with the "fundamental rights" strand of the "new" equal protection. Yet the legitimacy of fundamental values adjudication under the guise of equal protection is not at all clear. To say that persons who are alike must be treated alike does not tell us how to determine whether persons are alike or not for the purposes of the classifications inherent in virtually all legislation.

Thus, in a series of articles in the early 1980s, Professor Westen asserted that equality is in fact an "empty idea." As a matter of formal logic, he insists, a statement such as "people who are alike should be treated alike" is "entirely 'circular.' " " Westen suggests that the emphasis on "equality" distorts the analysis of underlying substantive rights and that, because "equality'' is an "empty [and confusing] vessel with no substantive moral content of its own," it "should be banished from moral and legal discourse as an explanatory norm." In response, a number of scholars have sprung to the defense of the utility of the equality concept. 14 The typical responses are twofold. First, it is argued that the equality notion at least creates a strong legalmoral presumption in favor of equal treatment of all persons, departures from which must be justified. Moreover, there is a mounting argument that the inherent principle of equal protection is one that mandates equality of respect for individuals.15 The extent to which equal protection permits value-free, process-oriented adjudication and the extent to which it inevitably involves governing assumptions about underlying (albeit often unarticulated) value choices, in short, is a problem to be borne in mind in examining the materials below.

1. Westen, "The Empty Idea of Equality," 95 Harv.L.Rev. 537 ~1982)‚

2. Cohen, "Is Equal Protection Like Oakland? Equality as a Surrogate for Other Rights," 59 Tul.L.Rev. 884 (1985).

3. Although the equal protection requirement of the 14th Amendment literally applies only to state action, judicial interpretation has made it applicable to the federal government as well, as an aspect of Fifth Amendment due process. The most notable case announcing that de facto process of reverse incorporation is Bolling v. Sharpe, the District of Columbia school desegregation case (1954; p. 652 below). As a general rule, the Court's "approach to Fifth Amendment equal protection claims [has] been precisely the same as to equal protection claims under the 14th Amendment." Weinberger v. Wiesenfeld (1975; p, 754 below).

4. Buck v. Bell, 274 U.S. 200 (1927). The fact that due process was the favorite interventionist tool of the Lochner years does not mean, however, that equal protection invalidations were wholly unknown. As early as Gulf, C. & S. F. Ry. v. Ellis, 165 U S. 150 (1897), for example, the Court relied on equal protection to strike down an economic regulation requiring railroads (but not other defendants) to pay attorneys' fees to successful plaintiffs in certain cases.

5. Gunther, "Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection," 86 Harv.L.Rev. 1 (1972) (hereinafter cited as Gunther, "Newer Equal Protection"). (All quotations in this over‑view, unless otherwise attributed, are from that article.) For a survey of the state of equal protection doctrine near the end of the Warren years, distinguishing the "restrained review" and "active review" spheres, see "Developments in the Law‑Equal Protection," 82 Harv.L.Rev. 1065 (1969) (hereinafter cited

as "Developments").

6. For a critical evaluation of new equal protection developments at the end of theWarren era, see Justice Harlan's dissent in Shapiro v. Thompson (1969; p. 861 below). For a more sympathetic view, see Karst & Horowitz, "Reitman v. Mulkey: A Telophase of Substantive Equal Protection," 1967 Sup.Ct.Rev. 39, noting that "some classifications al‚though far from irrational [are] nonetheless unconstitutional because they produce inequities that are unacceptable in this generation's idealization of America" and praising the "egalitarian revolution" launched by the Warren Court. Note the comment by one of the authors of that article, in Karst, "Invidious Discrimination: Justice Douglas and the Return to the 'Natural‑Law‑Due‑Process Formula,'" 16 U.C.L.A.L.Rev. 716 (1969), acknowledging: "The doctrine of invidious discrimination [as used in the new equal protection cases] do permit an escape from the problems associated with substantive due process."

7. Gunther, "Newer Equal Protection," at 12.

8. Thus, Dandridge v. Williams, p. 873 below, made clear early in Chief Justice Burger's tenure that heightened scrutiny would not be employed with respect to welfare legislation generally and that equal protection would not be read as imposing substantial new affirmative obligations on government and as assuring equality of results. The cases rejecting efforts to invoke equal protection as an affirmative, broad‑gauged weapon on behalf of the poor are symbolized by Rodriguez, the school fi nancing case in 1973 (p. 820 below). But see Plyler v. Doe (1982; p. 831 below).

9. Justice Stevens has been the most frequent advocate of that position. See, e.g., his concurring opinion in Craig v. Boren (1976; p. 661 below), beginning: "There is only one Equal Protection Clause."

10. Contrast the extremely deferential statements from the Warren Court with the occasionally more demanding versions of more recent years. Thus, Chief Justice Warren conveyed the deferential mood applied to the old equal protection category during the 1960s when he said that the equal protection clause was violated "only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective," that a "statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." (McGowan [1961; p. 616 below].) By contrast, Burger Court Justices sporadically articulated somewhat more demanding criteria, in two respects: first, they have suggested that the means, the classification, must substantially further the statutory objective; second, there has been the suggestion that the Court will no longer regularly hypothesize conceivable state purposes against which to test the rationality of the means‑the hypothesizing familiar not only in the economic due process area but also in the Warren Court's "old" equalProtection approach. Thus, there have been statements such as Justice Powell's opinion for the Court in McGinnis v. Royster, 410 U.S. 263 (1973), asking "whether the challenged distinction rationally furthers some legitimate, articulated state purpose"; insisting that the state objective be "nonillusory"; and claiming that the Court supplied "no imaginary basis or purpose" in sustaining the statutory scheme. For further discussion of the occasional surfacing of "new bite" for the "old" equal protection‑the "newer equal protection" modesee p. 620 below.

11. Note the comment in Justice Marshall's dissent in Harris v. McRae, the 1980 abortion funding case (p. 534 above). stating that "the Court has adopted an 'intermediate' level of scrutiny for a variety of classifications." He cited Trimble v. Gordon (1977; illegitimacy; P. 690 below), Craig v. Boren (1976; sex discrimination., p. 661 below) and Foley v. Connelie (1979; alienage; p. 682 below), In examining the modern alienage and illegitimacy cases, consider whether Justice Marshall's "intermediate" label for them, as for the sex discrimination cases, is accurate.

12. Modern equal protection developments have spurred an extraordinary flood of com‚mentary. In addition to the materials cited in the preceding footnotes, see, e.g., Ely,Democracy and Distrust (1980); Wilkinson, "The Supreme Court. the Equal Protection Clause, and the Three Faces of Constitutional Equality," 61 Va.L.Rev. ‑ 945 (1975); Barrett, "Judicial Supervision of Legislative Classifications‑A More Modest Role for Equal Protection?" 1976 B.Y.U.L.Rev. 89; Perry, "Modern Equal Protection: A Conceptualization and Appraisal," 79 Colum.L.Rev. 1023 (1979); O'Fallon, "Adjudication and Contested Concepts: The Case of Equal Protection," 54 N.Y.U.L.Rev. 19 (1979)~ and Bice, ìStandards of Judicial Review under the Equal Protection and Due Process Clauses," 50 S.Cal.L.Rev. 689 (1977).below

Some of these, as well as additional writings, will be referred to at appropriate places

From Constitutional Law, 12th Ed. Gerald Gunther. (Foundation Press, 1991).

Answer 2

Wow!! You never give up!! This is the fifth question tonight. You do NOT want help!! You want someone to DO your work. Do it yourself.

Chow!!

Answer 3

try roe vs. wade