Tuesday, February 28, 2017

Eyer on Rational Basis Review since the '70s

Katie R. Eyer, Rutgers Law School, has posted The Canon of Rational Basis Review, which is forthcoming in the Notre Dame Law Review:
The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors — of omission, simplification and recharacterization — we have largely erased a robust history of the use of rational basis review by social movements — instead embedding a widely shared view of rational basis review as a largely empty, meaningless form of review. Even to the extent that contemporary accounts contemplate more robust versions of rational basis review, they ordinarily cabin them narrowly to theories of “animus” or so-called “rational basis with bite.”

This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary Equal Protection entry-points for social movements seeking to use constitutional litigation to disrupt the status quo. Moreover, it suggests that unlike the narrowly constrained theories of robust rational basis review that predominate today, the actual history of rational basis review has included a wide diversity of more meaningful forms of review; even during eras where such review has been in tension with the Supreme Court’s formal pronouncements.

To elucidate the problems with canonical accounts of rational basis review, this Article focuses on four ways in which the contemporary constitutional canon misdescribes or distorts our understanding of the real role of rational basis review: (1) by misdescribing how contemporary social movements achieve meaningful scrutiny under the Equal Protection clause (which has, contra canonical accounts, since the 1970s virtually always been through the gateway of rational basis review); (2) by recharacterizing successful rational basis cases as only “purporting” to apply rational basis review; (3) by ignoring the vast majority of constitutional litigation, which goes on in the lower and state courts, as well as by ignoring constitutional change in the legislative and executive branches; and (4) by oversimplifying and thus narrowly cabining any acknowledgment of more meaningful forms of rational basis review.