Animus Trouble

Abstract

Animus doctrine has arrived. Once rarely mentioned as an explanation for why rational basis claims succeed under the Equal Protection clause, today leading scholars have situated the doctrine as key to rational basis litigants’ success. This characterization has quickly taken on the character of constitutional “common sense,” becoming a widely shared view of the doctrine. Thus, a showing of animus has been situated as the primary, or perhaps exclusive, way that those outside of the heightened tiers can win claims.

This Essay argues that this animus-focused understanding of rational basis review is both descriptively inaccurate and substantively problematic. For decades, social movements have made use of rational basis review to generate space for constitutional change where the doctrines of heightened scrutiny are unavailable to them. Very few of these cases have involved the application of so-called “animus” doctrine — and many arguably would not have been successful were a showing of animus required. Nor is such a showing compelled by the Supreme Court’s rational basis precedents, which remain messy, indeterminate, and inconsistent. Thus, the scholarly animus project — if taken seriously as doctrine — poses real and unnecessary risks to the ways that social movements have relied on rational basis review to effectuate constitutional change.

The Essay concludes by discussing the Supreme Court’s decision in Trump v. Hawaii, and describing why it should be seen as a warning sign of what an animus-centric Equal Protection jurisprudence could become.

Keywords: Equal Protection, Social Movements, Rational Basis Review, Animus Doctrine