Putting the 'Review' Back in Rational Basis Review

Abstract

In equal protection jurisprudence, courts adhere to a three-tiered system of review to determine the constitutionality of laws that rely on classifications of people. Strict scrutiny is the most searching inquiry, followed by intermediate scrutiny, and then rational basis. Rational basis review is the default. The two heightened levels of scrutiny apply to only a handful of already-identified groups. As a general principle, courts are deferential to the other branches of government. However, there is a departure to that principle when it comes to individual rights. That is, rational basis review is exceptionally deferential to the government. When individual rights are at stake, courts typically require the government to prove that its action is constitutional in nature and justified in fact. But under rational basis review, courts require the challenger of a law to disprove every conceivable, possible rationale for a law, regardless of whether it was actually a motivating factor behind the legislation. This standard has been interpreted to mean that even if a judge can imagine any reason why a rationale could — even hypothetically — justify a law, then the law stands as constitutional. Often governments do not even assert a rationale for their actions. Rather challengers must disprove even the wildest, most speculative and hypothetical justifications, which could include those introduced by the judge herself.This Article begins by revealing several of the inherent shortcomings of the current rational basis standard. That standard undermines principles of adversarial adjudication, destabilizes other individual rights doctrines, leaves the rights of certain citizens with virtually no protection, and legitimizes discriminatory animus. In effect, rational basis review preserves a discriminatory status quo, meaning that as society’s values evolve, the Equal Protection Clause becomes less capable of protecting those values. Those troubling consequences need not persist. This Article proposes an alternative and improved in standard of review for the least intrusive level of judicial scrutiny in the tiered equal protection framework. This standard, which I call “rationale review,” shifts the burden of proof onto the government to show a reasonable, fact-based justification for laws that classify people. This standard would only marginally increase the burden on governments defending laws that involve classification of people, but it would require those governments to proffer at least an iota of evidence of a constitutionally permissible justification. Rationale review would not dramatically alter the current tiered equal protection framework. Those groups currently afforded heightened scrutiny would continue to receive such a standard of review. And laws concerning all other groups would continue to receive the least intrusive judicial inquiry under the tiered framework. Under rationale review, however, the government would bear the burden of proof in justifying as constitutional — with facts — those laws that make classifications of people.