Thursday, July 2, 2009

Bressman on Craig v. Boren and Brennan's 'Heightened Scrutiny' Test in Historical Perspective

A New Standard of Review: Craig V. Boren and Brennan's 'Heightened Scrutiny' Test in Historical Perspective is an article by Jeremy Owen Bressman. The abstract has just been posted on SSRN. It indicates that the article is forthcoming in the Journal of Supreme Court History, however the JSCH website lists it as appearing in the 2007 issue. In any case, here's the abstract:
'To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.' With this one statement, Justice William Brennan, Jr., writing for the majority in the 1976 Supreme Court case Craig v. Boren, both reversed the decision of the district court below and — more importantly — redefined the legal standard for equal protection in gender-discrimination cases. Brennan's statement encapsulated decades' worth of development and decisions under the Equal Protection Clause of the Fourteenth Amendment, which bars states from denying 'to any person within [their] jurisdiction the equal protection of the laws,' by creating what is now referred to as the 'heightened scrutiny' standard for judging equal protection legislation. Yet Brennan's creation of a new standard is quite striking, even when looked at in hindsight. How was Brennan able to create this standard of review, and where did it come from? Was this new step taken by the Justices under equal protection adjudication a mistake, or a necessary reality of the period? Through a close analysis of both the history of the Equal Protection Clause in its relation to gender legislation and the history of feminism during the 1960s and 1970s, the inevitability of Brennan's decision becomes clear. In fact, the creation of the heightened scrutiny standard was an inevitable outgrowth of two separate, yet fundamentally related progressions: the steps taken in the Court in its review of gender-discrimination cases in the years prior to Craig v. Boren; and the changes in society's relation to the feminist movement in the pre-1973 and post-1973 periods.
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