I: Equal Protection: Minimum Basis Review
? Question: Classification justified by a permissible purpose. Tiers of Scrutiny

1. Rational basis: Rational relationship to a legitimate government interest. Challenger has burden of proving. a. Very deferential. b. Classifications: Sex-orientation [?], Age, Disability, Wealth.

2. Intermediate Scrutiny: Substantial relationship to an important government purpose. Government burden of proof. a. Classifications: Gender, illegitimacy, sex-orientation [?]

3. Strict Scrutiny: narrowly tailored to achieve a compelling government purpose a. Classifications: Race, National Origin. b. "Strict in theory, fatal in fact"
[also used for fundamental rights]
What determines why heighted scrutiny?
3 Traditional Criteria:

1. Immutable characteristic

2. Historical Discrimination

3. Powerless to protect self via political process. New York City Transit Authority v. Beazer (1978)
? Not hiring an employee who uses methadone. Safety & efficiency
? Fn. 9: Policy is overinclusive, but still has rational relationship.
? Stevens Majority: Methadone users not a politically unpopular group
? White Dissents: Might need protection from judiciary o Fn. 15: Moreno, Cleburne

II: Equal Protection: Race Dred Scott (1857)
? Birth of 14A in response to this.
? Why didn't Taney stop on the jurisdiction question?
? Taney on Judicial Role: o Not to evaluate merits of this opinions o Decision up to law-making political process. o Bifurcation of Justice and Constitutional Interpretation
? Dicta: Missouri compromise was beyond
? Second federal invalidation of a federal law after Dred Scott.
? PROF: What's wrong with Dred Scott o Should have stopped before Diversity claim?
o Abdication of Morality and Justice and Personal responsibility o Scape-goating Taney for being a product of his time?

Frederick Douglas Speech
...
Plessy v. Ferguson (1896)
? Applying effectively rational basis to race
? Statute: Separate but equal train cars; but allows nurses of the "other race" o Facially neutral
? Separate but equal reasonable for race
? Harlan Dissent: o Expressive function of law; can shape social values and inferiority o But still slightly racist: White as dominant and continue to be... Chinaman...
o Two theories:
? Anti-classification: Colorblind. Harm to race is when any classification is made. Draw no lines on the basis of race
? No one believes this in its entirety; can't send a white cop undercover into a black gang. So, what kind of racial divisions acceptable?
? anti-subordination: No superior, dominant race or ruling class. [AA permissible]
o Rights:
? Civil: File a law suit, make a contract
? Political: Right ot vote, run for office
? Social: Peer-to-peer; marriage, etc. o Harlan says ride train is a civil right; Majority says it's a social right.
? Both agree Social Rights not have to be equal Originalism:
? Three flavors o Framer's original intent [Meese]
o Ratifier's original understanding o Original public meaning/Original Expected Application
? More Modern.
? less subjective, more about common usage.
? Scalia the most important justice of last generation. o Flexibility in statehouses, not courthouses. o "Living constitution" flexibility is undesirable.
? Role of Precedent?
o There are sancrosanct opinions. Scalia, "I'm an originalist, not a nut"
? Originalism adopted by the Left: o Balkin's "Living Originalism" - "majestic generalities" not "specificities." o Founders not always specific, so delegating to future generations.
? (See 10/16 lecture for more on Originalism & Liberals)
? Takeaway: Originalism can be broad or narrow DC v. Heller (2008)
? Flowering of originalism. Fought exclusively on originalist terms.
? Prohibition on handguns in DC unconstitutional.
? Scalia: Identify operative clause. Some handgun regulations permissible - certain times, places, people. o PROF: Is Court's opinion actually a living constitutionalism one?

?

Stevens dissent: Why is that allowed but not this?

Path to Brown
? Cumming (1899): Black taxpayers challenging money for their white high school. Black HS closed. o Harlan: Wrong kind of remedy requested. o [What is the right remedy for EP? Leveling up or down?]
o Here, plaintiff asked for leveling down (Close the white HS), should've asked to reopen the black school. o Rare to level down (But see swimming pool case)
? McCabe v. Atchinson (1914): Sleeper cars on train. Must provide same kinds of facilities if going to be separate. o Emphasis on equal accommodations.
? Gaines v. Canada (1938): Can't have all white law school without a black law school. Paying for a different state's tuition not sufficient.
? Sweatt v. Painter (1950): Law school required to integrate. o Schools in Texas NOT equal. o Intangibles: Faculty, prestige, alumni, standing in community o Can't match reputation and faculty - inherently unequal. o [Plaintiff chosen carefully: Already married, so no suggestion that he's looking for a white wife...]
? McLaurin v. Oklahoma (1950): Public School of education can't restrict Doctorate student (separate cafeteria table, sit outside the classroom) Common Law Constitutionalism
? David Strauss: How legal change occurs
? Court articulates a rule and attempts to apply it, but rule is not satisfactory. Evolves over time, as judges slowly hollow out the rule.
? PROF: o Too anemic a conception of what justices are doing. o More aware of what they are doing. o Plessy (rational basis) -> By Buchanan, no longer doing reasonableness. o Not unconscious, but decisive decisions Buchanan v. Warley (1917)
? Residential segregation order impermissible.
? Viewed as a break in tradition even immediately after the case. o Property rights issue not explain everything. o How is this not social rights, not civil rights, at play?
o Trying to distinguish Plessy Brown v. Board of Education (1954)
? Common law constitutionalism process of interpretation?
o Separate but equal been tried and failed o PROF: This would be precedent-centric. Not true here!
? Warren: not an originalist, originalism is inconclusive.
? Times have changed since 1896. Public education has exploded. o Modern focus: "Today," "This day and age"

???

Holding: Separate educational facilities are inherently unequal. o But: not address de facto vs. de jure segregation Brown limited to public education, but Civil Rights Movement expands. o Later per curiam decisions not really justified on Brown. More Anti-classification than anti-subordination. o "Inferiority never to be undone" o Social science evidence. o But some classification as well: "on the basis of race" FN. 11: Famous footnote, citing psych studies - were not rigorous science...
Unanimous: but in exchange, Brown II...
o PROF: A terrible mistake. Separated right from remedy. o Would South have been less upset if there had been dissents?
o [Roe v. Wade was 7-2; would 9-0 have made a difference?]

Bolling v. Sharpe (1954)
?????companion to Brown
? 5A, not 14A: 14A not apply to DC.
? DP and EP not interchangeable?
o "Equal protection component of the 5A"?
o See Tribe, "Double helix of liberty and equality" [Windsor?]
? PROF: How could originalists reconcile all this?
Brown II (1955): All Deliberate Speed
? PROF: A cop-out decision. Brown I a hero, II a villain
? Invitation of Southern Manifesto?
? More anti-classification than anti-subordination. o See Parents Involved Cooper v. Aaron (1958) - supra Loving v. Virginia (1967): Miscegenation laws not ok.
? CJ Warren for a unanimous court
? (3 years earlier: McLaughlin v. Florida - co-habitation OK)
? Strict scrutiny
? Note: VA law explicit about white and black
? Compared to Brown o EP
? Brown: can't turn back clock to 1896
? Loving: Stronger interpretation on 14A. 14A to eliminate all inequality. o DP here also
? PROF: Complicate traditional account o Traditional Account: Supreme Court wise to wait in 1955; opposition dwindled since Brown o BUT: Approval of interracial marriage in 1967 very low. Very controversial decision. Aftermath of Brown: In 6 years between Green and Miliken, court exits the field of policing racial discrimination. 4 new Nixon appointees.
? Green (1968): First time weighing in since Cooper

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