Equal Protection and Scrutinizing Scrutiny: The Supreme Court’s Decision in Sessions v. Morales-Santana

This Note attempts to synthesize the cases on 8 U.S.C. § 1409(c) and provide a workable framework for intermediate scrutiny in the equal protection realm. Intermediate scrutiny, like all levels of scrutiny, is an ends-means balancing test. Under intermediate scrutiny, the ends must be “important.” The interest cannot be “hypothetical” or “invented post hoc in response to litigation.”234 Instead, it must be the actual reason behind the statutory classification and this must be clearly demonstrated by the government. On the other side, the means must “substantially relate” to the asserted interest.

The means chosen cannot result from overbroad assumptions about the way men and women are. But they do not have to be the leastdiscriminatory means possible, as in strict scrutiny. As long as the means relate to real physical differences, the means are likely to “substantially relate” to its objectives. In short, the means have to work, but they do not have to be the only ones that would.