Beyond Suspect Classifications
Susannah William Pollvogt
University of Denver Sturm College of Law
March 28, 2013
University of Pennsylvania Journal of Constitutional Law, Forthcoming
U Denver Legal Studies Research Paper No. 13-28
There have been myriad critiques of suspect classification analysis, from both the bench and the academy. The most prominent concerns are that the analysis does not protect groups that it should protect, and that it is internally inconsistent as well as inconsistently applied. This article is concerned with two other problems: the failure of suspect classification analysis to recognize contemporary prejudices and the unwarranted role of the analysis in justifying the institution of judicial review. But there is no need to throw the baby out with the bath water. Rather, these very concerns can be addressed by reading the Supreme Court’s suspect classification jurisprudence not for the discrete doctrinal innovations of each case, but for a political theory and an associated, alternative theory of judicial review latent in the Court’s reasoning in this area. What emerges from this reading is a political theory that is less concerned with the ordering of social groups and more concerned with preserving individual self-determination and the social mobility that gives self-determination meaning. This primary concern, in turn, provides a more vigorous and principled justification for the role of the judiciary in overturning the actions of the political branches.
Number of Pages in PDF File: 116
Keywords: equal protection, suspect classificationAccepted Paper Series
Date posted: March 29, 2013 ; Last revised: December 23, 2013
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