From Bad to Worse?: Some Early Speculation About the Roberts Court and the Constitutional Fate of the Poor
14 Pages Posted: 29 Oct 2008 Last revised: 17 Nov 2009
Date Written: October 28, 2008
Conventional wisdom - supported in large measure by blackletter law - suggests that discrimination on the basis of wealth or class largely escapes constitutional sanction. If the conventional wisdom is correct, then issues of class and equal protection represent one area in which advocates of a more robust individual rights jurisprudence have little to fear from the Roberts Court. In this Essay, prepared for a Symposium on "The Roberts Court and Equal Protection: Gender, Race, and Class," Professor Siegel offers a contrary view. He makes three related observations. First, existing caselaw is more complex than usually acknowledged, offering substantial interstitial protection against class discrimination. Second, the Rehnquist Court, though not a major innovator in this area, largely respected the doctrinal status quo. Finally, the first terms of the Roberts Court offer a number of reasons to question whether the Roberts Court will do the same.
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