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The Political Process, Equal Protection, and Substantive Due Process

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The Political Process, Equal Protection, and Substantive Due Process ARTICLES THE POLITICAL PROCESS, EQUAL PROTECTION, AND SUBSTANTIVE DUE PROCESS Jesse H. Choper* Stephen F. Ross** ABSTRACT In its landmark decision in Carolene Products, the Supreme Court crafted a uniquely American solution to the counter-majoritarian dilemma present in any constitutional democracy: when unelected judges should substantively review policy choices made by elected legislators and executives. The political process theory underlying that decision is that a court with a history of decisions based on judicial ideology should limit close review of government actions to three situations: (1) when the action contravenes a specific provision of the Bill of Rights, (2) when the action threatens to improperly limit the political process, or (3) with regard to the broadly worded Due Process and Equal Protection Clauses, when courts determine that the political process does not work normally. The Supreme Court has not faithfully implemented this approach over the years. However, neither Justices nor commentators have developed a superior alternative approach. We believe that most Americans ought to prefer a return to Carolene Products, as superior (either philosophically or because of risk aversion) to leaving important constitutional precedents subject to the vagaries of highly partisan politics. Our approach builds upon insights of Justices Harlan Fiske Stone, Robert Jackson, and Thurgood Marshall. First, courts should consider challenges initially under the Equal Protection Clause. Second, the category of cases warranting heightened judicial scrutiny should be expanded to include those in which claimants can prove that they are excluded from the Madisonian factional “wheeling and dealing” that characterizes ordinary politics. Third, substantive due process claims should remain available, but only where claimants can demonstrate that animus or prejudice precludes their ability to use the political process to redress their grievances. TABLE OF CONTENTS INTRODUCTION.....................................................................................984 I. A “CHURCHILLIAN” DEFENSE OF PROCESS THEORY ........................989 A. Original Intent and Textualism ........................................................... 990 B. Rooted in Tradition ........................................................................... 993 C. Open-Ended Proportionality Review .................................................... 996 * Earl Warren Professor of Public Law Emeritus, University of California (Berkeley). ** Lewis H. Vovakis Faculty Scholar and Professor of Law, Pennsylvania State University. Thanks to Richard Fallon, Jonathan Kay, James Pfander, David Schraub, and David Strauss for comments and assistance, and to the Constitutional Law Cluster at the University of Sydney Fac- ulty of Law and the Democratic Roundtable of the McCourtney Institute for Democracy at Penn State, for insights. 983 984 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:5 D. Common Law Reasoning ................................................................... 998 E. “Fundamental” Rights .....................................................................1001 F. Process Theory is Substantially Restraining ........................................1004 II. THE COURT’S UNEVEN FIDELITY TO CAROLENE PRODUCTS ............ 1005 A. Heightened Equal Protection Scrutiny and Process Jurisprudence ...........1005 B. Federalism and Process Jurisprudence ................................................1009 C. Substantive Due Process and (the lack of) Process Jurisprudence ...........1010 III. REINVIGORATING CAROLENE PRODUCTS IN MODERN DUE PROCESS AND EQUAL PROTECTION DOCTRINE ....................... 1012 A. Equal Protection First ......................................................................1013 B. Proving Powerlessness ......................................................................1015 C. Substantive Due Process Under Footnote Four .....................................1025 IV. WHAT WOULD RIGOROUS APPLICATION OF PROCESS THEORY LOOK LIKE? .............................................................................. 1029 A. Desirability of Resolving Cases Under the Equal Protection Clause .......1030 B. Return to San Antonio ......................................................................1033 C. Family Law Generally .....................................................................1036 D. Personal Autonomy and the “Right to Die” ........................................1037 E. Practices of Religious Minorities Not Protected by the Free Exercise Clause .............................................................................1039 CONCLUSION....................................................................................... 1040 INTRODUCTION The fundamental problem of American constitutional law has been popularly named the “counter-majoritarian dilemma.” Coined by noted scholar Alexander Bickel, the problem arises because when the Supreme Court invalidates a legislative or executive act that, in the Justices’ judg- ment, violates the Constitution, the decision “thwarts the will of representa- tives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it.”1 This issue is theoretically present in any constitutional democracy. However, the so-called “Lochner era” supplied a uniquely American problem for Justices, scholars, and theo- rists to address. Building over five decades, the 1930s saw a crisis in consti- 1 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 17 (1962). May 2018] POLITICAL PROCESS, EQUAL PROTECTION, & SUBSTANTIVE DUE PROCESS 985 tutional law where progressive social legislation enacted by a plainly majori- tarian political process (ratified in the 1936 landslide reelection of President Franklin D. Roosevelt) was being systematically invalidated by an ideologi- cally divided Supreme Court. Moreover, the Court’s majority was seen as imposing their own personal political and ideological preferences.2 Over seventy-five years ago, a re-formed Supreme Court3 crafted a so- lution to this dilemma in United States v. Carolene Products Co.4: the broadly worded Due Process and Equal Protection Clauses of the Fifth and Four- teenth Amendments would ordinarily be applied with great judicial defer- ence to legislation. The Court rejected both a due process and an equal protection challenge to a federal law limiting the sale of a particular kind of milk. The Court reasoned that: [R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the as- sumption that it rests upon some rational basis within the knowledge and experience of the legislators.5 However, in the Court’s famous Footnote Four (the most celebrated foot- note in American constitutional law6), the Court noted important excep- tions when reviewing legislation that impaired the political process. Thus, “a correspondingly more searching judicial inquiry” might be required when “prejudice against discrete and insular minorities” existed that “tends 2 For a recent summary of this important period in constitutional history, see JEFF SHESOL, SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT (2010). Shesol quotes Washington Daily News columnist Ray Clapper: “President Roosevelt will not be thwarted through- out his second four years by five or six members of the court who happen to hold a political phi- losophy contrary to that which dominates the federal administration, most of the state govern- ments, and more than 60 percent of the voters.” Id. at 245. 3 The famous “switch in time that saved nine” that averted the constitutional crisis was the decision in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). In that case, Justice Owen Roberts, who had previously voted with the 5-4 conservative majority of the Court to invalidate New Deal legis- lation in, for example, Carter v. Carter Coal Co., 298 U.S. 238 (1936) (striking down a federal regula- tion as to coal mining), split from his conservative brethren to join the majority in upholding the National Labor Relations Act. By 1938, two of the conservative Justices, Willis Van Devanter and George Sutherland, had retired and had been replaced by Hugo Black (a New Deal-favoring senator from Alabama) and Stanley Reed (who had been President Roosevelt’s Solicitor General). David O’Brien, Reed, Stanley Forman, in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 712–13 (Kermit L. Hall ed., 1992); Tinsley E. Yarborough, Black, Hugo Lafayette, in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES, su- pra, at 72–75. 4 304 U.S. 144 (1938). 5 Id. at 152. 6 Lewis F. Powell, Jr., Carolene Products Revisited, 82 COLUM. L. REV. 1087, 1087 (1982). 986 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:5 seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”7 Carolene Products is a solution to America’s unique need to limit active re- view by a Court with a history of ideological interpretations of potentially unlimited concepts like “due process” or “equal protection.” Its theory is to limit close judicial scrutiny8 to cases where courts determine that the politi- cal process does not work properly. This theory was extensively developed, at a general level, by John Hart Ely in his aptly named book, Democracy and Distrust.9 It was specifically applied
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