Skee-doo skidoo, or the current law on due process


Yesterday the SJC reversed a District Court ruling that prohibition of personalized watercraft on great ponds violated substantive due process:

The specifics of the defendant’s argument were based on the claim of fundamental rights because of the public’s interest in such bodies of water.  The rejection of that argument was not surprising.  The case does, however, lead me to muse upon the issue of where we are today with respect to substantive due process.

I have often thought about writing an article entitled Are Stupid Laws Illegal?  (Not that the regulation involved in this particular case was.)  The answer is, of course, no, they aren’t — at least in the economic context, since Lochner and progeny.  There is an interesting article at 55 Am. U. L. Rev. 457 (2005) that comprehensively reviews of how economic due process claims have fared since 1940, state by state.  In the recent past, some scholars have suggested that, with a more conservative, “pro-business” Supreme Court, the pendulum might be swinging back.  Also, Justice Kennedy’s reliance on due process in his concurrence in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), demonstrated that the concept of economic due process isn’t as dead as everyone thought.  Still, there’s a long way to go before a claim that a particular law makes no sense will, in itself, have any chance of prevailing, particularly in the economic arena.

Still, I think recent U.S. Supreme Court decisions are interesting in the direction they appear to be heading. 

In rejecting the defendant’s due process claim, the Maine SJC dropped a footnote indicating that an equal protection argument had been raised but not pursued, so the Court was not going to address it.  When the arbitrariness of a law suggests that a legislature is doing something besides simply not acting intelligently, such as discriminating, then the articulated reasons why the Court retreated from its stricter interpretation of substantive due process don’t really apply.  Practical political issues aside, the Supreme Court backed off in Lochner because it understood that its role is not to act as some sort of Uber-executive or legislative branch reviewer of when a law is unwise.  Whether a law makes sense, however, is a very different thing conceptually than whether it discriminates, with review of the latter constituting a very legitimate aspect of a court’s role.

From a practical perspective, however, lots of laws discriminate against someone.  As the Supreme Court has noted, “The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one person or another, with resulting disadvantage to various groups or persons.”  Romer v. Evans, 517 U.S. 620, 631 (1996). To avoid the floodgates (“reconcile the principle with the reality,” id.), the Court has developed its multi-tiered scrutiny approach – if the regulation doesn’t burden a fundamental right or suspect class, then rational basis scrutiny applies.

The SJC upheld the prohibition against personalized watercraft under the due process clause based on that rational basis scrutiny, and legislation almost always survives under that standard.  In Romer, however, the Court struck down a state constitutional provision excluding homosexuals, lesbians or bisexuals from antidiscrimination protections, applying the rational basis test.  The Court did so because it stated that the rational basis test, while deferential, still requires the articulation of an independent and legitimate legislative end, separate from the purpose of discrimination against a group that, while not falling within the “suspect” class, is “disfavored,” 517 U.S. at 632, or “politicially unpopular.”  Id. at 634.  The Court then rejected the rationales offered by the state in that case for the constitutional provision as “so far removed” from the breadth of the provision that it could not even survive.  Id. at 635.   

This interface between dues process and equal protection continued in Lawrence v. Texas, 539 U.S. 558 (2003), the case reversing Bowers v. Hardwick, 478 U.S. 186 (1986), and, therefore, striking down a state statute that criminalized certain sexual conduct between individuals of the same sex.  Justice Kennedy wrote the majority decision in both Romer and Lawrence (he’s a busy guy).  There, while noting that reliance on equal protection would have been “tenable,” the Court preferred to rely on due process because it was broader.  Id. at 576 (“If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons.  When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”)

Justice O’Connor, concurring, focused on equal protection.  (In Eastern Enterprises, their roles were flipped – Justice O’Connor wrote the plurality opinion based on the takings clause, while Justice Kennedy concurred, based on due process).  After noting that laws such as economic and tax legislation are scrutinized under rational basis review and thus normally pass constitutional muster, citing, among other decisions, Romer, she noted that when a law exhibits such a desire to harm a politically unpopular group, the Court has applied “a more searching form of rational basis review” to strike down such laws under the equal protection clause.  Id. at 581.  In Lawrence, the state asserted an interest in “promotion of morality.”  Id. at 582.  But “moral disapproval,” Justice O’Connor wrote, has never been held as “a sufficient rationale under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by the law.'”  Id. at 584 (citing Romer).

So what does all of this mean?  That the degree of scrutiny applied, even if you haven’t got a “fundamental right” or a “suspect class,” will vary based on whether the Court perceives discrimination.  As Justice Kennedy noted, the rational basis test was basically designed to avoid floodgates.  If there is anything that doesn’t require deep probing into factually contestable material that makes it fairly evident that the purpose of the law is discrimination, then you should at least have a shot at a constitutional claim.

This reasoning is paralleled in commerce clause jurisprudence, which I would write some more about if this posting hadn’t already become far too long.

The fundamentals of this type of reasoning is sound:  courts should stop discrimination; they shouldn’t be super-legislatures.  As a practical matter, they have to put some curbs into their discrimination test to avoid being inundated.  The trick is articulating — or at least applying — the test in a predictable and non-subjective way.  Otherwise the test can become as arbitary as the law under challenge. 

The SJC’s decision here was easy because there was no hint of regulating for the purpose of discriminating.  The law had a rational enough basis to conclude there was no hidden agenda. 

The degree of nuttiness of a law can, but does not always, suggest that something else is going on besides dimwitted legislating.  But even if the legislature’s reasoning is idiotic, if that’s all it is, then antidiscrimination concerns don’t arise.  But if the nuttiness of a law raises concerns that there is a hidden agenda — or maybe not so hidden –, then these recent Supreme Court decisions, I think, properly reflect that a court should probe beyond the “anything goes” rational basis test, to give the test real teeth (“a searching inquiry”).  Logically, this thumb on the scale of scrutiny should apply whether or not the discrimination happens to be against a suspect class or relates to economic issues.  Discrimination simply for the purpose of discrimination is bad, period, and the courts should stop it.  Equal justice means just that.