Intent and Incoherence

Tulane Law Review, Vol. 72, 1997-1998

112 Pages Posted: 8 Nov 1997 Last revised: 28 Apr 2011

See all articles by Sheila Foster

Sheila Foster

Georgetown University; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: April 27, 2011


"Intent and Incoherence" dissects the intent standard in equal protection jurisprudence, filtering it through the lens of democratic process theory. Most legal scholars and commentators writing in this area refer to, and critique, the "rule" of intent as a uniform standard in equal protection jurisprudence. However, it is clear from the Supreme Court's jurisprudence that different levels of intent are accepted and/or required in different contexts. A close look at the intent doctrine reveals that various levels of consciousness can satisfy the discriminatory intent standard, and hence violate the equal protection clause. The Court has yet to articulate what considerations or factors drive these different levels of intent.

Exactly what explains these disparate, and seemingly incoherent, levels of intent is the subject of this article. I identify a set of criteria which explain the application of these different levels of intent, using basic tenets underlying democratic process theory and its offspring, motive review theory. The article then sets out to "cohere" the intent doctrine according to these democratic process criteria, locating explicit references to these process criteria in the Court's reasoning. I argue that conceptualizing the different levels of intent along a continuum, according to the above mentioned criteria, provides a coherent account of the intent doctrine. Specifically, the degree of judicial restraint, and level of intent required to invalidate governmental action, depends upon 1) the type of actor making the decision, 2) the type of decision made, and 3) the substantive right affected by the decision.

The account of the intent doctrine offered in the article also provides a framework in which to assess the Court's fidelity to its normative and doctrinal commitments. I identify two areas where judicial review of facially neutral laws raises problematic questions in this regard. The first area involves review of allegedly discriminatory administration of facially neutral laws (e.g. McCleskey v. Kemp). The second area involves review of facially neutral gerrymandering legislation creating "majority-minority" voting districts (e.g. Shaw and Miller). Both areas illustrate a new type of incoherence in equal protection jurisprudence: that between the Court's treatment of certain types of governmental decisions and the normative justifications underlying such treatment.

Suggested Citation

Foster, Sheila, Intent and Incoherence (April 27, 2011). Tulane Law Review, Vol. 72, 1997-1998, Available at SSRN:

Sheila Foster (Contact Author)

Georgetown University ( email )

Washington, DC 20001
United States

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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