The Harvard Law Review has published a student Note of interest: "When Rational Basis Review Bit." Here's an excerpt from the introduction (footnotes omitted):
Like many widows, Sandy Meadows faced economic uncertainty after her husband passed away. She, however, had a knack for arranging flowers and found a job in the floral department of her local Albertsons grocery store. Sandy excelled, earned a promotion, and effectively ran the entire department.3 But then the Louisiana Horticulture Commission came knocking. The Commission informed the store that it had to hire a licensed florist or shut down the department.
Louisiana is the only state in the Union that imposes occupational licensing requirements on florists. Prior to reforms in 2024, getting licensed was no small task. Would-be florists were required to pass a notoriously difficult exam — fewer than fifty percent made the cut. Sandy failed this exam five times, but it wasn’t because her floral skills were lacking; her job performance was exemplary. She failed because currently licensed florists decided who passed and who failed. Fox, meet henhouse.
Sandy’s story doesn’t have a happy ending. When she couldn’t get a license, Albertsons fired her and replaced her with a licensed florist. She couldn’t afford a phone or car, and the power company eventually shut off the electricity to her home. Shortly thereafter, Sandy died in poverty, alone.
Before her death, Sandy — along with a few other aspiring florists — challenged Louisiana’s licensing scheme with the help of attorney Clark Neily, who recounts Sandy’s story in his book Terms of Engagement. They lost, felled by a familiar foe in constitutional adjudication: rational basis review. No matter that the women had a constitutional right to pursue their chosen profession or that even a Supreme Court Justice has recognized that rational basis review is “tantamount to no review at all.” Because Louisiana presented conceivable justifications for its licensing scheme, the court upheld the regulations. And Sandy’s livelihood vanished.
Rational basis review wasn’t always this farcical. For about twenty years, between the Court’s decisions in United States v. Carolene Products Co. — which established rational basis review — and Williamson v. Lee Optical of Oklahoma, Inc. — which redefined rational basis review as a hyper-deferential standard — the courts applied a meaningful means-end scrutiny to restrictions on economic activity that gave legislatures wide latitude to exercise their police power while protecting a baseline level of economic liberty. (This Note refers to that time period as the Carolene Products era.) That blend of interrogation and deference was the right approach. Many scholars have called on courts to give economic rights their due; this Note offers a proven mechanism for doing so: reviving the Carolene Products–era approach to rational basis review.
Read on here. (Hat tip: Melissa Murray, via Strict Scrutiny)
For more on the history of rational basis review, focusing on a different period, see Katie Eyer's Constitutional Crossroads and the Canon of Rational Basis Review, 48 U.C. Davis L. Rev. 527 (2014) (arguing that "the dominant modern understanding of the Court’s minimum tier (rational basis) review — as a shallow and empty form of review, devoid of meaningful scrutiny — is, to some extent, a byproduct of our loss of historical memory").
-- Karen Tani
