Measuring Political Power: Suspect Class Determinations and the Poor Bertrall L. Ross II* & Su Li** Which classes are considered suspect under equal protection doctrine? The answer determines whether courts will defer to legislatures and other government actors when they single out a group for special burdens or intervene to protect that group from such treatment. Laws burdening suspect classes receive the strictest scrutiny possible and, under current doctrine, whether a class is suspect turns largely on whether the court views the group as possessing political power. But how do courts know when a class has political power? A plurality of the Supreme Court initially suggested that political power should be measured according to a group’s descriptive representation in politics. Under that measure, the largely white, male, wealthy, and straight makeup of most of the nation’s decision- making councils would indicate that other less well-represented groups lack political power. But that measure never received majority support from the Court. Instead, the Court consolidated around a different measure of political power—one that focused on DOI: http://dx.doi.org/10.15779/Z38327Q Copyright © 2016 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Assistant Professor of Law, University of California, Berkeley, School of Law. ** Research Methodologist and Statistician of Empirical Legal Studies, Center for the Study of Law and Society, University of California, Berkeley, School of Law. For their helpful comments and support, we would like to thank E. Scott Adler, KT Albiston, Robert Bartlett, Eric Biber, Fredric Bloom, Catherine Crump, John de Figueiredo, Chris Elmendorf, Mary Louise Frampton, Mark Gergen, Ian Haney-López, Prasad Krishnamurthy, Chris Kutz, Margaret Lemos, Justin McCrary, Joy Milligan, Saira Mohamed, Melissa Murray, Anne O’Connell, Lisa Pruitt, Kevin Quinn, Andrea Roth, David Schraub, Peter Schuck, Jeff Selbin, Jonathan Simon, Fred Smith, Avani Sood, Rachel Stern, Jon Stiles, and David Super, as well as the participants at the 2013 Poverty Law Conference, the 2014 Poverty and Place Conference, the 2014 ClassCrits Conference, the Berkeley Law Junior Working Ideas Group, the Berkeley Law Faculty Workshop, the Duke Law School Culp Colloquium, the Law and Society Association Annual Meeting, and the University of Colorado School of Law Faculty Workshop. For their helpful research assistance, we would like to thank Kira Bartholomew, Daniel Brown, Michael Cipriano, Patrick Dib, Cindy Dinh, Charlotte Hill, Elise Marsh, Chelsea Ortiz, Briana Starks, and Suzanne Van Arsdall. 323 324 CALIFORNIA LAW REVIEW [Vol. 104: 323 democratic actions favorable to a group. If laws have been enacted protecting the group from discrimination or otherwise advancing the group’s interests, the Court assumes that the group can attract lawmakers’ attention and therefore does not need judicial protection. In the forty years since the Court introduced this measure of political power, it has not found a single class suspect. In fact, it is hard to imagine the Court finding any class to be politically powerless under this measure. Even the most politically marginalized groups (such as the poor, noncitizens, and felons) have benefited from laws favoring their interests. This leads us to question whether favorable democratic action is a reliable measure of political power. Focusing on the poor, we advance the first empirical test of the Supreme Court’s measure of political power. Our findings suggest that legislators’ support for antipoverty legislation is not motivated by the political power of the poor—implying that favorable democratic action does not always reliably indicate a group’s political power. Given these findings, we argue that the Court should rely on a more holistic, and thus more reliable, measure of political power. The measure should include favorable legislative actions but also indicators of lobbying activity, political responsiveness, voter turnout, and descriptive representation in politics. Introduction ..................................................................................................... 325 I. Suspect Class Doctrine and Political Power ................................................ 329 A. The Origins of Suspect Class Doctrine ........................................ 330 B. An Emerging Standard: Political Power as Descriptive Representation .............................................................................. 333 C. Political Power as Favorable Democratic Actions ....................... 334 D. Continuing Controversy over the Measure of Political Power .... 336 II. The Case of the Poor .................................................................................. 341 A. The Curious Case of the Suspect De-Classification of the Poor .. 341 B. Applying the Suspect Class Standard to the Poor ........................ 343 C. Prior Measures of the Political Power of the Poor ....................... 345 D. The Limits of Prior Measures ...................................................... 348 III. Testing the Supreme Court’s Measure of Political Power ........................ 350 A. The Theoretical Model ................................................................. 352 B. Testing the Supreme Court’s Model of Political Power .............. 356 1. Hypothesis and Data .............................................................. 356 2. Methods .................................................................................. 359 3. Findings .................................................................................. 361 C. The Public Choice Objection ....................................................... 376 IV. Toward a More Holistic Approach to Measuring Political Power ........... 379 Conclusion ...................................................................................................... 382 Appendix 1: Imputation of Congressional District Poverty Data for the 88th–92nd Congress (1963–72) ........................................................... 383 Appendix 2: Imputation of Congressional District Union Data ..................... 384 2016] MEASURING POLITICAL POWER 325 Appendix 3: Legislative Actions ..................................................................... 386 INTRODUCTION In the forty years since the Supreme Court announced a standard for determining which classes are suspect under the Equal Protection Clause, no new class has been found suspect.1 Suspect class status is critical, because it determines whether a group will receive heightened judicial protection from discriminatory laws.2 Whether, for example, a state employment law that discriminates against gays and lesbians, a local ordinance that criminalizes homelessness, or a state prohibition on felon voting will be invalidated under the Equal Protection Clause ordinarily depends on the judicial choice to extend suspect class status to gays and lesbians, the poor, and felons. Some scholars attribute the Court’s failure to find new suspect classes to the Justices’ anxiety about extending this sort of protection to too many groups.3 Other scholars blame the growing conservatism of the Court.4 While both are certainly part of the story, many have overlooked the role of doctrine itself. According to doctrine, a class is considered suspect if members of the class share an immutable, obvious, or distinguishable trait that is irrelevant to their ability to contribute to or perform in society; have suffered a history of discrimination; and are politically powerless.5 Ever since the Court announced this standard, the Court has used it only to deny suspect class status to new groups. Women, children born out of 1. Noncitizens represent the last class the Court declared suspect, and it did so by judicial fiat rather than through application of the suspect class standard. Graham v. Richardson, 403 U.S. 365, 372 (1971); see Suzanne B. Goldberg, Equality Without Tiers, 77 S. CAL. L. REV. 481, 485 (2004) (describing how the Court stopped the expansion of suspect class status almost immediately after developing the test). 2. This special judicial protection is in the form of strict scrutiny of discriminatory laws. In order for a law to survive strict scrutiny, the state must show that it is necessary to achieve a compelling purpose. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274 (1986) (Powell, J., plurality opinion). One scholar has suggested that “the choice between strict scrutiny and the rational relation standard often determines whether the court strikes down or upholds a law . .” Lynn A. Stout, Strict Scrutiny and Social Choice: An Economic Inquiry into Fundamental Rights and Suspect Classifications, 80 GEO. L.J. 1787, 1787–88 (1992). 3. See, e.g., Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 748, 755–63 (2011) (“The jurisprudence of the United States Supreme Court reflects . pluralism anxiety. Over the past decades, the Court has systematically denied constitutional protection to new groups, curtailed it for already covered groups, and limited Congress’s capacity to protect groups through civil rights legislation.” (footnotes omitted)). 4. See, e.g., Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 YALE L.J. 1141, 1143 (2002) (describing the development among conservative Justices of a hostility toward “the more ‘radical’ extensions of antidiscrimination