The anti-antidiscrimination agenda

Yale Law Journal

Volumn 111, Issue 5, 2002, Pages 1141-1177

  Rubenfeld, Jed ^a  

^a NONE

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EID: 0042306307     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797619     Document Type: Article

References (119)

1. Symposium, The Constitution in Exile, 51 DUKE L.J. 1 (2001).
2. See, e.g., Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. WASH. L. REV. 1373, 1389-90 (1998). For Justice Scalia's defense of textualism, see ANTONIN SCALIA, A MATTER OF INTERPRETATION 47 (1997).
3. See, e.g., Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO. WASH. L. REV. 1373, 1389-90 (1998). For Justice Scalia's defense of textualism, see ANTONIN SCALIA, A MATTER OF INTERPRETATION 47 (1997).
4. See, e.g., Scott Fruehwald, If Men Were Angels: The New Judicial Activism in Theory and Practice, 83 MARQ. L. REV. 435 (1999); Donald H. Zeigler, The New Activist Court, 45 AM. U. L. REV. 1367 (1996); Larry D. Kramer, Editorial, No Surprise. It's an Activist Court, N.Y. TIMES, Dec. 12, 2000, at A33.
5. See, e.g., Scott Fruehwald, If Men Were Angels: The New Judicial Activism in Theory and Practice, 83 MARQ. L. REV. 435 (1999); Donald H. Zeigler, The New Activist Court, 45 AM. U. L. REV. 1367 (1996); Larry D. Kramer, Editorial, No Surprise. It's an Activist Court, N.Y. TIMES, Dec. 12, 2000, at A33.
6. See, e.g., Scott Fruehwald, If Men Were Angels: The New Judicial Activism in Theory and Practice, 83 MARQ. L. REV. 435 (1999); Donald H. Zeigler, The New Activist Court, 45 AM. U. L. REV. 1367 (1996); Larry D. Kramer, Editorial, No Surprise. It's an Activist Court, N.Y. TIMES, Dec. 12, 2000, at A33.
7. 530 U.S. 640 (2000).
8. Id. at 648.
9. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958).
10. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).
11. United States v. Morrison, 529 U.S. 598 (2000).
12. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
13. See, e.g., Rehnquist and Minority Voters, NATION, Jan. 1, 2001, at 7.
14. See, e.g., CHARLES R. LAWRENCE III & MARI J. MATSUDA, WE WON'T Go BACK 139 (1997) (asserting that Justice Thomas may suffer from "internalized racism and self-deprecation").
15. United States v. Lopez, 514 U.S. 549 (1995). While Lopez is often said to represent "the first time in nearly sixty years" in which the Court "invalidated . . . a congressional reliance on its commerce power," GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 142 (13th ed. 1997), the honor actually seems to belong to New York v. United States, 505 U.S. 144 (1992), which struck down a federal hazardous waste disposal statute in part on the ground that the Commerce Clause "authorizes Congress to regulate interstate commerce" and not to "regulate state governments' regulation of interstate commerce." Id. at 166.
16. E.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936); R.R. Ret. Bd. v. Alton R.R. Co., 295 U.S. 330 (1935).
17. For example, in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Court invalidated a federal code establishing a forty-hour work week and a minimum wage for some workers. But as everyone knows, the definitive decisions of the Lochner era held that states could not pass maximum-hour or minimum-wage laws. E.g., Adkins v. Children's Hosp., 261 U.S. 525 (1923) (minimum wage); Lochner v. New York, 198 U.S. 45 (1905) (maximum hours).
18. The most remarkable single illustration of this agenda and of the illusory nature of the Court's doctrinal manipulations is probably Coronado Coal Co. v. United Mine Workers, 268 U.S. 295 (1925), where, contrary to what the Court was then saying with respect to both the Commerce Clause and the "liberty of contract," the Court upheld the application of the Sherman Act against striking mine workers.
19. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (striking down portions of the Violence Against Women Act); City of Boerne v. Flores, 521 U.S. 507 (1997) (striking down the Religious Freedom Restoration Act).
20. See, e.g., Morrison, 529 U.S. at 613 (emphasizing that gender-based violence is not "commercial" in nature); Boerne, 521 U.S. at 519 (strictly construing the word "enforce" in Section 5 of the Fourteenth Amendment).
21. See, e.g., Larry D. Kramer, But When Exactly Was Judicially-Enforced Federalism "Born" in the First Place?, 22 HARV. J.L. & PUB. POL'Y 123 (1998); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441 (2000); Donald H. Regan, How To Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554 (1995).
22. See, e.g., Larry D. Kramer, But When Exactly Was Judicially-Enforced Federalism "Born" in the First Place?, 22 HARV. J.L. & PUB. POL'Y 123 (1998); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441 (2000); Donald H. Regan, How To Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554 (1995).
23. See, e.g., Larry D. Kramer, But When Exactly Was Judicially-Enforced Federalism "Born" in the First Place?, 22 HARV. J.L. & PUB. POL'Y 123 (1998); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441 (2000); Donald H. Regan, How To Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554 (1995).
24. See, e.g., Larry D. Kramer, But When Exactly Was Judicially-Enforced Federalism "Born" in the First Place?, 22 HARV. J.L. & PUB. POL'Y 123 (1998); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L.J. 441 (2000); Donald H. Regan, How To Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554 (1995).
25. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).
26. Id. at 362.
27. Id. at 358.
28. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-87 (1999); Seminole Tribe v. Florida, 517 U.S. 44, 54-55 (1996).
29. U.S. CONST. amend. XI ("The Judicial power of the United States shall not be construed to extend to any suit . . . commenced . . . against one of the United States by Citizens of another State, or by . . . Subjects of any Foreign State.").
30. U.S. CONST. amend. XIV, § 5; see Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (holding that the Eleventh Amendment is "necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment").
31. Garrett, 531 U.S. at 360.
32. See id. at 374 n.9 ("Title I of the ADA still prescribes standards applicable to the States.").
33. Garrett came to the Supreme Court on appeal from an order granting summary judgment to the University of Alabama, id. at 362-63, so Garrett's allegations were assumed true for purposes of the decision.
34. See, e.g., Larkins v. Dep't of Mental Health & Mental Retardation, No. 1991538, 2001 WL 632948 (Ala. June 8, 2001) (dismissing on sovereign immunity grounds an employee's suit against a state employer alleging violations of a federal statute).
35. 5 U.S. (1 Cranch) 137 (1803).
36. Id. at 163.
37. Id.
38. Id. at 166.
39. See Garrett, 531 U.S. at 374 n.9.
40. U.S. CONST. amend. XI.
41. Marbury, 5 U.S. (1 Cranch) at 166.
42. See, e.g., Vicki C. Jackson, Coeur d'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist, 15 CONST. COMMENT. 301 (1998); Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1683 (1997); Lauren Ouziel, Note, Waiving States' Sovereign Immunity from Suit in Their Own Courts: Purchased Waiver and the Clear Statement Rule, 99 COLUM. L. REV. 1584 (1999).
43. See, e.g., Vicki C. Jackson, Coeur d'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist, 15 CONST. COMMENT. 301 (1998); Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1683 (1997); Lauren Ouziel, Note, Waiving States' Sovereign Immunity from Suit in Their Own Courts: Purchased Waiver and the Clear Statement Rule, 99 COLUM. L. REV. 1584 (1999).
44. See, e.g., Vicki C. Jackson, Coeur d'Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist, 15 CONST. COMMENT. 301 (1998); Carlos Manuel Vázquez, What Is Eleventh Amendment Immunity?, 106 YALE L.J. 1683 (1997); Lauren Ouziel, Note, Waiving States' Sovereign Immunity from Suit in Their Own Courts: Purchased Waiver and the Clear Statement Rule, 99 COLUM. L. REV. 1584 (1999).
45. See Garrett v. Bd. of Trs. of the Univ. of Ala., 989 F. Supp. 1409 (N.D. Ala. 1998), rev'd, 193 F.3d 1214 (11th Cir. 1999), rev'd, 531 U.S. 356 (2001).
46. The Fifth Amendment provides that no person "shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend, V.
47. Alden v. Maine, 527 U.S. 706 (1999).
48. Garrett, 531 U.S. at 363.
49. Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring) ("Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure.").
50. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669-70 (1999); Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 15 (1890).
51. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
52. Id. at 648.
53. See, e.g., Richard A. Epstein, The Constitutional Perils of Moderation: The Case of the Boy Scouts, 74 S. CAL. L. REV. 119 (2000); Christopher W. Smart, Case Comment, The First Amendment: Expressive Association or Invidious Discrimination? - Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000), 53 FLA. L. REV. 389 (2001).
54. See, e.g., Richard A. Epstein, The Constitutional Perils of Moderation: The Case of the Boy Scouts, 74 S. CAL. L. REV. 119 (2000); Christopher W. Smart, Case Comment, The First Amendment: Expressive Association or Invidious Discrimination? - Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000), 53 FLA. L. REV. 389 (2001).
55. See, e.g., Richard A. Epstein, The Constitutional Perils of Moderation: The Case of the Boy Scouts, 74 S. CAL. L. REV. 119 (2000); Christopher W. Smart, Case Comment, The First Amendment: Expressive Association or Invidious Discrimination? - Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000), 53 FLA. L. REV. 389 (2001).
56. Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REV. 767 (2001).
57. United States v. Morrison, 529 U.S. 598 (2000).
58. Id. at 613.
59. Id. at 619, 627.
60. See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997). Boerne states: Congress' power under § 5 . . . extends only to "enforc[ing]" the provisions of the Fourteenth Amendment. . . . Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation. Id, at 519 (alteration in original).
61. See id.
62. Morrison, 529 U.S. at 626-27.
63. See id. at 613-14.
64. See id. at 617-18 ("We . . . reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local.").
65. Compare U.S. CONST. amend. XIV, § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."), with id. amend. XIII, § 2 ("Congress shall have power to enforce this article by appropriate legislation.").
66. See, e.g., Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (upholding a federal statute prohibiting racial discrimination in housing).
67. See Morrison, 529 U.S. at 621 (relying on and reaffirming the Civil Rights Cases, 109 U.S. 3 (1883)).
68. 163 U.S. 537 (1896) (finding that the Fourteenth Amendment protects only "civil" equality, not "social" equality, and therefore upholding a state statute segregating railway cars by race).
69. 83 U.S. (16 Wall.) 130 (1872) (upholding a state statute barring women from the practice of law).
70. 83 U.S. (16 Wall.) 36 (1872) (rendering the Privileges or Immunities Clause of the Fourteenth Amendment essentially a nullity).
71. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
72. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958). One might try to explain this discrepancy by appealing to a distinction between the Constitution's "structural" provisions, which allocate powers among governmental actors, and its provisions guaranteeing individual rights. The former should be read strictly, it might be argued, the latter expansively. Whatever may be said in theory for this idea, it cannot make sense of the Court's new case law. As already discussed, the Court's "Eleventh Amendment" cases, surely examples of cases interpreting "structural" provisions, are not examples of strict construction. These cases show that the five Justices who make up the present majority are prepared to shift into textually cavalier mode - to the point of creating wholly unwritten constitutional law - in interpreting the Constitution's structural provisions too, when it suits their purposes. See, e.g., Alden v. Maine, 527 U.S. 706, 713 (1999) (acknowledging that what the Court has "sometimes referred to . . . as Eleventh Amendment immunity" is "a misnomer" for a principle of state sovereign immunity "neither derive[d] from nor . . . limited by the terms of the Eleventh Amendment"); see also Printz v. United States, 521 U.S. 898, 905 (1997) (striking down a federal statute on federalism grounds even though "there is no constitutional text speaking to this precise question").
73. Boy Scouts, 530 U.S. at 659 ("Dale contends that we should apply the intermediate standard of review enunciated in United States v. O'Brien, 391 U.S. 367 (1968), to evaluate the competing interests. . . . But New Jersey's public accommodations law directly and immediately affects associational rights . . . . Thus, O'Brien is inapplicable.").
74. Employment Div. v. Smith, 494 U.S. 872 (1990).
75. See Boy Scouts, 530 U.S. at 658-59.
76. Lochner v. New York, 198 U.S. 45 (1905).
77. See, e.g., id. at 72 (Harlan, J., dissenting) ("What the precise facts are it may be difficult to say. It is enough for the determination of this case, and it is enough for this court to know, that the question is one about which there is room for debate and for an honest difference of opinion."); id. at 75 (Holmes, J., dissenting) ("This case is decided upon an economic theory . . . . If it were a question whether I agreed with that theory, I should desire to study it further . . . . But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.").
78. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368 (2001); see also, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (holding that a federal age discrimination statute exceeded the reach of the Fourteenth Amendment prohibition of discrimination).
79. City of Boerne v. Flores, 521 U.S. 507, 519 (1997). Needless to say, not all of the Court's new "federalism" cases have involved antidiscrimination statutes. See, e.g., Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) (addressing an intellectual property statute as applied to infringement by a state actor); Printz v. United States, 521 U.S. 898 (1997) (involving a gun sale background-check statute); United States v. Lopez, 514 U.S. 549 (1995) (involving a "gun-free school zones" statute).
80. Boy Scouts, 530 U.S. at 640.
81. Id. at 648.
82. Id. at 655.
83. Id. at 640-41.
84. Id. at 653.
85. Cf. Hyman v. City of Louisville, 132 F. Supp. 2d 528, 543-44 (W.D. Ky. 2001) (rejecting a Boy Scouts-like claim under "the Freedom of Association Clause of the First Amendment" where the plaintiff's "medical practice [was] simply a commercial enterprise" and where the doctor asserting a right not to hire homosexuals "made no allegation that . . . his practice ha[d] as a purpose the exercise of his religion").
86. See, e.g., German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 406 (1914).
87. Larry D. Kramer, The Supreme Court, 2000 Term - Foreword: We the Court, 115 HARV. L. REV. 4, 14 (2001).
88. Id.
89. Editorial, A Court Running in the Wrong Direction, N.Y. TIMES, July 6, 1995, at A20.
90. Jeremy Waldron, A Question of Judgment, TIMES LITERARY SUPPLEMENT, Sept. 28, 2001, at 17.
91. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000). But cf. Romer v. Evans, 517 U.S. 620, 624 (1996) (striking down a state constitutional amendment forbidding any state actor to "enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall . . . be the basis of or entitle any person . . . to have or claim any minority status, quota preferences, protected status or claim of discrimination"). If Romer is a counterexample to the anti-antidiscrimination agenda, it is not a very strong one. Romer did not hold that states could no longer criminalize homosexuality; it did not recognize homosexuality as a suspect classification; and it did not hold that homosexuality could not be a basis of discrimination in employment, in the military, or elsewhere. What Romer gave, Boy Scouts substantially takes away. Romer seems to hold that laws banning anti-gay discrimination cannot be expressly prohibited by a state's constitution; Boy Scouts holds that the very same laws can be prohibited by the Federal Constitution. Nevertheless, Romer does suggest that the anti-antidiscrimination agenda may be embraced with different strength by different Justices. (Even a judge who believes that American antidiscrimination law has gone too far need not uphold a law that "identifies persons by a single trait and then denies them protection across the board," making this class of persons "a stranger to [the] laws," which is how Justice Kennedy, writing for the Court in Romer, described that case. Id. at 633, 635.) If this variation among the Justices produces occasional anomalous results, then in this respect too the anti-antidiscrimination agenda is similar to the Lochner era's pro-laissez-faire agenda: It is so undertheorized jurisprudentially that exceptions and anomalies should come as no surprise.
92. See, e.g., United States v. Morrison, 529 U.S. 598 (2000).
93. See, e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001).
94. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
95. See Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 433-36 (1997).
96. United States v. Lopez, 514 U.S. 549, 585-86 (1995) (Thomas, J., concurring) (citations omitted).
97. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 517 (1996) (Scalia, J., concurring) (complaining about the parties' failure to discuss state legislative practices regulating commercial speech at time the First Amendment was adopted).
98. See Tony Mauro, Scalia Says There Is No Right To Die, USA TODAY, Oct. 28, 1996, at 1A (quoting Justice Scalia as saying, "It's absolutely plain there is no right to die," and reporting that Scalia "said his view was based on the fact that laws against suicide were universally accepted at the time of the drafting of the Constitution").
99. Act of July 28, 1866, ch. 296, 14 Stat. 310, 317 (emphasis added).
100. Resolution of Mar. 16, 1867, No. 4, 15 Stat. 20.
101. E.g., Act of Mar. 3, 1869, ch. 122, 15 Stat. 301, 302; Resolution of June 15, 1866, No. 46, 14 Stat. 357, 357-58. To these laws, one could add a number of statutes dealing with Indians. In 1865, for example, Congress appropriated $500,000 for the relief of "destitute Indians." Resolution of Dec. 21, 1865, No. 1, 14 Stat. 347. The standard argument purporting to distinguish Indian laws from "racial classifications" claims that a law granting privileges to members of a sovereign (or semi-sovereign) nation is not a racial classification. But this notion, if it has any force at all, has force only when Congress is dealing with Indians as members of independent "tribes" or "nations." When we cut through all the legal fictions, the 1865 statute allocating money for "destitute Indians" is just another instance of a blood-based minority preference.
102. See, e.g., Rubenfeld, supra note 85, at 430-31; Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753, 775, 778-80 (1985).
103. See, e.g., Rubenfeld, supra note 85, at 430-31; Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753, 775, 778-80 (1985).
104. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
105. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976) ("San Antonio School District v. Rodriguez, 411 U.S. 1, 16 (1973), reaffirmed that equal protection analysis requires strict scrutiny . . . only when the classification . . . operates to the peculiar disadvantage of a suspect class.") (emphasis added); see also Pennell v. City of San Jose, 485 U.S. 1, 14 (1987) ("As we stated in Vance v. Bradley, 440 U.S. 93 (1979), 'we will not overturn [a statute that does not burden a suspect class or a fundamental interest] unless . . . we can . . . conclude that the legislature's actions were irrational.'") (alteration in original, emphasis added).
106. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987) (rejecting strict scrutiny where the group burdened by the law lacked these characteristics); Lyng v. Castillo, 477 U.S. 635, 638 (1986) (rejecting heightened scrutiny because close relatives are not a suspect class).
107. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985) (stating that strict scrutiny applies to distinctions based on race, alienage, or national origin, and a heightened standard of review applies to legislative classifications based on gender).
108. E.g., Murgia, 427 U.S. at 312-14.
109. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (emphasis added).
110. See, e.g., United States v. Hirschberg, 988 F.2d 1509 (7th Cir. 1993). The following passage is especially illustrative: At oral argument, the defense stated that the wealthy are a suspect class and suffer greater prejudice than do racial minorities, a fact "born[e] out by scores of cases." We expressed our skepticism, but were assured that "legions of cases" recognize this class prejudice, and those cases were "set forth and discussed at length in the brief." Try as we might, we find no cases in the defendant's brief or in our research that identify the wealthy as a suspect class. Id. at 1514-15.
111. Laws favoring the poor are routine in our system, but laws facially discriminating against the poor are, of course, rare. In 1941, the Court faced such a law and struck it down. See Edwards v. California, 314 U.S. 160 (1941) (invalidating a California statute barring nonresident indigents from being brought into the state). Justice Jackson urged the Court in that case to "say now, and in no uncertain terms, that a man's . . . being without funds is a neutral fact -constitutionally an irrelevance, like race, creed, or color." Id. at 184-85 (Jackson, J., concurring).
112. See, e.g., City of Cleburne, 473 U.S. at 432 (striking down on equal protection grounds an ordinance requiring a special permit for the construction of a home for the mentally handicapped).
113. Adarand, 515 U.S. at 241 (Thomas, J., concurring).
114. Bush v. Vera, 517 U.S. 952, 984 (1996) (plurality opinion of O'Connor, J., joined by Rehnquist, C.J., and Kennedy, J.).
115. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion); see also Adarand, 515 U.S. at 229 (quoting Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (Stevens, J., dissenting) ("[A] statute of this kind inevitably is perceived by many as resting on an assumption that those who are granted this special preference are less qualified . . . . [T]hat perception . . . can only exacerbate rather than reduce racial prejudice . . . .").
116. 426 U.S. 229 (1976) (rejecting an equal protection challenge to the use of a standardized test in hiring decisions, where blacks performed disproportionately worse on the test, but where there was no allegation that the test had been adopted because of its propensity to exclude blacks).
117. See, e.g., RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994).
118. Adarand, 515 U.S. at 241 (Thomas, J., concurring).
119. 531 U.S. 98 (2000).