Unsuspecting

Abstract

All laws classify, but not all classifications are created equal. Under contemporary Fourteenth Amendment doctrine, certain classifications are “suspect”, triggering heightened judicial review and often rendering the targeted legislation unconstitutional. Because the alternative rational basis test is so deferential, the question over which sorts of classifications are “suspect” may be the single most important — and most discussed — issue in equal protection doctrine. Yet amidst all the talk about how a group gains recognition as a “suspect class”, there has been virtually no discussion about the seemingly obvious corollary: how a group loses its status as one. After all, if suspect status is designed for a particular, exceptional sort of minority — for example, those peculiarly unable to protect themselves in the political process — facts indicating that the group is no longer saddled by these disabilities should kick it back into the normal rough-and-tumble of democratic politics. But no case has even contemplated, much less seriously threatened, that a hitherto protected class might one day be removed from the list. By all appearances, suspect classification is a one-way ratchet.

This is a mistake. Descriptively, the criteria we use to assess which classifications are “suspect” are nearly all transient in character, and it is incongruous that shifts in these characteristics should not be accompanied by changes in which classifications are considered suspect. Normatively, perpetual suspect classes are hard to square with norms of democratic self-governance and presume that judges are always and in all circumstances better positioned than legislatures to protect the “suspect” class. Labeling a classification suspect functionally results in a shift in power away from legislatures and towards the judiciary. Whether this is a benefit or a burden depends on the nature of the discrimination faced by the protected group and the relative level of sympathy each branch accords to them. Where courts are hostile, or discrimination transcends overt classificatory bars or conscious antagonistic motives, a suspect classification may block salutary democratic gains more frequently than it arrests genuinely harmful legislation.

Keywords: strict scrutiny, suspect classification, equal protection, constitutional law