Forum: Equal Protection and the Burger Court

UC Law Constitutional Quarterly UC Law Constitutional Quarterly

Volume 2 Number 3 Summer 1975

1-1-1975

Forum: Equal Protection and the Burger Court Forum: Equal Protection and the Burger Court

Article 1

Forum: Equal Protection and the Burger Court

At the invitation of the Quarterly, Professors Jesse Choper of Boalt Hall, Ray Forrester of Cornell, Gerald Gunther of Stanford and Philip Kurland of Chicago participated on March 22, 1975, in a panel discussion of recent events in equal protection cases. Professor Sullivan of Hastings College served as the moderator. A video-tape recording of the conversation is on reserve at the Prosser Videotape Library at Hastings. Following initial remarks, members of the audience submitted written questions or asked questions orally of the panel. The following is a partially edited transcript of the two hour forum.*

PROFESSOR FORRESTER: Thank you, Professor Sullivan.

It's a pleasure to be here and to see so many good friends.

I would like to say initially that the subject we are discussing involves a great mass of material. A surprising number of recent cases have centered in one way or the other on this general matter. In attempting to review and simplify that material in these introductory remarks, I am cautioned by H. L. Mencken's observation that there is a simple answer to every complex problem, and it is wrong.

Although there is only one brief equal protection clause in the Constitution, the Supreme Court has managed to build it into a monolithic body of law, which is somewhat remindful of Mark Twain's description of the massive prehistoric animal which he saw in an exhibit at the Smithsonian. Back home someone asked, "What did you think about it, Sam?" and he replied, "One bone and a ton of plaster." But the ton of judicial plaster that has been fashioned around the equal protection clause has been reduced in recent years to two general doctrines-the traditional standard of equal protection and the so-called new standard of equal protection. For many years, as I see it, the new equal protection

standard was not formalized. Comments are to be found using the words of the standard in early cases, such as the McLaughlin1 case and the Skinner' case, but there was no definitive and doctrinal statement of it. However in 1969 in Shapiro v. Thompson,3 Justice Brennan's majority opinion stated the doctrine as if it were a general proposition of law and not something used in arguendo in deciding whether a particular situation offended the equal protection clause.

In 1973 Mr. Justice Powell, in San Antonio Independent School District v. Rodriguez,4 took the trouble, for the benefit of first-year law students and their law professors, to spell out the details of the new equal protection standard. When spelled out the rules became rather numerous. He said that the new test provides that when governmental action creates a class based on suspect criteria, or which abridges. a fundamental right, it is subject to strict scrutiny by the judiciary, and the government has the heavy burden of showing to the satisfaction of the judges that there is a compelling governmental interest in making the classification. Further, the law must be structured with precision and tailored narrowly to serve legitimate objectives. It must choose the least drastic means, the least restrictive alternative to accomplish its ends, and the usual presumption of constitutionality is removed. In addition, Powell spelled out the traditional indicia of the suspectness of a class. The indicia are-whether the class is saddled with such disabilities, or subjected to such a history of purposeful or unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.

He suggested that the answer to whether a particular subject involves a fundamental right lies in assessing whether there is such a right explicitly or implicitly guaranteed by the Constitution. Examples of the so-called suspect class are race, nationality and alienage. An example of a classification relating to a fundamental right is the right to travel, which was the basis for the Shapiro5 decision. These are, as I see it, the fundamental rules of the new equal protection doctrine.

I have had more difficulty in identifying precisely the traditional standard of equal protection. I find in my reading that there are a number of standards which come under this title. For example, Powell, in this same Rodriguez6 case has stated that the test is whether the state law

bears some rational relationship to legitimate state purposes, but in the very same opinion he expressed it somewhat differently. He said the test is whether the law rationally furthers a legitimate state purpose. Chief Justice Warren, in the well-known McGowan' case, frequently cited as the basic decision defining the traditional doctrine, made the statement: "Although no precise formula has been developed, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." Other judges in other cases have used different formulations. For example, Justice Harlan at one time said the test is whether the law is "rationally related to a legitimate governmental objective." Stewart, in the recent Geduldig8 case, said that the test is whether the line drawn by the state amounts to invidious discrimination. And in the 1974 case of Kahn v. Shevin,9 regarding sex discrimination, Justice Douglas used as the traditional test language to the effect that the law must be reasonably designed to further a valid state policy. But Mr. Justice Black, some years ago in the Harper0 case, pretty well spilled the beans by saying that the test really involves a number of catchwords such as "irrational," "unreasonable," "arbitrary," "invidious."

Now, in my view, these various verbalizations of the doctrine are not the same. As I see it, "any relation" is not the same as "some relation," or the same as "a relation," or as "a reasonable relation."

In addition to these varying formulations of the traditional test, the Court has recently been borrowing from the substantive due process doctrine in spelling out the meaning of the phrase. For example, in Reed v. Reed," Chief Justice Berger for the Court struck down a sex classification saying that the classification must rest on some ground of distinction having a "fair and substantial relation" to the object of the legislation, so that all persons in similar situations shall be treated alike. This language, "fair and substantial relation," is very similar to that used in one of the early and leading cases on substantive due process. In Mugler v. Kansas,'2 which was decided in 1887, the opinion said the courts "are under a solemn duty to look at the substance of things .. .. If, therefore, a statute purporting ...to protect the public health ... has no real or substantial relation to those objects ...it is the duty of the courts to so adjudge.

Thus, it seems we find the Court beginning to borrow from the concepts of substantive due process in spelling out the meaning of the equal protection clause.

Along with these two basic approaches, an additional development has taken place. It is illustrated by Frontiero v. Richardson,13 a 1973 sex discrimination case in which the Supreme Court held a federal statute unconstitutional. The Court couldn't use the equal protection clause to strike down the law because, as you know, that's in the Fourteenth Amendment and is applicable only to the states. It has no application to the federal government. So, the Court used the due process clause of the Fifth Amendment but borrowed and applied the specific rules of the new equal protection standard, such as the compelling state interest language, strict scrutiny, suspectness, fundamental rights, etc. This case, along with Richardson v. Belcher4 and Roe v. Wade,5 the abortion case, exemplifies the interchange of standards now practiced by the Court in the use of the due process and equal protection clauses of the Constitution. Now think of that combination. If there are two semantic blanks in the American Constitution which can mean anything you want them to mean if you have a vote on the Supreme Court, they are the due process clause and the equal protection clause. Holmes said, "Due process is reasonableness judicially determined." It appears now that equal protection is also reasonableness judicially determined. This, it seems to me, is significant in connection with the present status of the law and what is now going on within the Supreme Court. This is a guess, and I may be totally wrong, but it looks to me as if some of the members of the Court, when confronted with this combination of due process and equal protection under these highly restrictive interventionist standards, began to shy away from the use of the new doctrine in a categorical, comprehensive fashion in relation to additional subjects such as sex discrimination, poverty, and so on. And it seems that between 1969, when Shapiro6 first formally and explicitly asserted the doctrine, and the present time, something took place inside the Court. Some of the justices became concerned with the expansion of a doctrine that promised to establish a new and greater level of judicial power than had existed before. And subsequently, today we find that the momentum which appeared to be building with Shapiro toward a higher standard of judicial review through the extension of the new equal protection rules seems to have subsided.

The Court appears now to be marking time, deciding cases under other concepts which can gain the support of a majority of the Court. For example, in 1973 in Vlandis v. Kline," it used the rule against arbitrary irrebuttable presumptions to knock out a classification which could have been tested under the new equal protection doctrine if the Court had chosen to use it. And the Court has also relied on the traditional equal protection standard more frequently. For example, Mr. Justice Douglas, in the recent 1974 case of Kahn v. Shevin,18 used traditional equal protection as the test to measure the constitutionality of a Florida law which gave a property tax exemption to widows but not to widowers. In the course of his opinion, he took occasion to observe, "The dissent would use the equal protection laws as a vehicle for reinstating notions of substantive due process that have been repu'We have returned to the original constitutional proposition that diated. courts do not substitute their social and economical beliefs for the judgment of legislative bodies who are elected to pass laws."' And he quoted the opinion of his colleague, Hugo Black, in the earlier case of Ferguson v. Skrupa,19 in which Black soundly condemned the doctrine of substantive due process and urged that it be abandoned.

I think that it is significant that Mr. Justice Douglas, who is sensitive to discrimination, would shy away, as I am suggesting, from the new equal protection doctrine in testing a law involving sex discrimination. His objection to the reinstatement of substantive due process through the equal protection law makes me think that he and other members of the Court have decided that the Court must not go too far in the use of the new equal protection tests. There is at least one member of the Court, however, who holds resolutely to the idea. Mr. Justice Brennan, who is primarily responsible for the effort to establish the new concept, continues to press the point, still uses it in his opinions, sometimes now in his dissenting opinions, and serves to remind the Court that the doctrine is still there. It has not been repudiated, though it seems to be used now in a more selective way than Brennan would prefer. The majority has not challenged the suspectness of race, they have not repudiated the fundamental nature of the right to travel. These still stand, but the majority refuses to move boldly into a new level of judicial review under the banner of new equal protection. Now the old doctrine, of course, is very lenient. It is permissive. In some of its forms such

as the "any relation" test it is highly permissive. On its face it does not give the Court much power. It is a model expression of judicial self-restraint. On the other hand, the tests of new equal protection are highly interventionist, very strict. In fact, as Professor Gunther has pointed out in his Foreword, when the Court applies that test to a law, the result is nearly always fatal to the law. So, you have a hard choice there between the too permissive rule of the old test and the too restrictive and interventionist nature of the new test. We should pause here to give Professor Gunther credit for being the first, or one of the first scholars, who early on saw the implications here.

It has been suggested that the Court is formulating a third rule, the newer equal protection standard, by invoking the real and substantial relations test, which is a middle position between the old and the new and is designed to take care of those cases where the Court wants to strike down the law but does not find either of the two categories quite appropriate.

My own impression is that the Court is reaching "middle" results but without, so far, actually adopting a newer equal protection standard of moderate impact. So, it looks to me as if the Court is reaching the results it wants-middle results, more interventionist than the old test, but less restrictive than the new. It usually does this within the rubric of traditional equal protection language, borrowing at times from the langauge of substantive due process as in Reed v. Reed."0

Well, like most law professors, I can go on forever on my favorite

subject, but I am going to bring myself to stop-now!

PROFFESSOR SULLIVAN: Professor Choper, would you like to speak at this time-either an initial statement or a comment on what Professor Forrester had to say?

PROFESSOR CHOPER: I would like to say at the outset that I am also very pleased to have been able to come across the bay this morning. I had intended to say, "to visit at a sister law schoor'; but given the subject of the discussion today, I think I better not say that for fear that since it is clear that the Hastings College of Law is subject to the state action prohibition of the Fourteenth Amendment, even under the narrowest reading, I would likely get in trouble.

I think it's fairly easy to state where the Court is and what it is doing so far as equal protection is concerned. If it finds a statutory classification that it feels is so bad that it ought to hold it unconstitu-

tional, it does so. With increasing frequency it uses the traditional equal protection test in the process, finding statutory classifications either "arbitrary" or "irrational." On other occasions, it uses the "compelling state interesf test to invalidate a statutory classification. And, in several instances, when some doctrine or one case or another stands in the way, it uses the "irrebuttable presumption' approach to strike down a statutory classification.

On the other hand, when it believes that a particular classification is not so bad as to be held unconstitutional, it upholds it, usually invoking the rationality doctrine. It is very much like Thomas Reed Powell's classic description of the validity of state regulations of interstate commerce-but the results don't turn as much on who the members of the Court happen to be at a particular time but rather on what the feelings of a majority of the justices happen to be in respect to a particular classification.

Equal protection doctrine is many faceted. One can attempt to divide it in a number of ways. There is the category of classifications that impinge on "fundamental rights" and its companion category of classifications in respect to "suspect" groups. There is the "rationality" test on the one hand and the "compelling state interest" test on the other. Further, there is the distinction between de jure and de facto discriminations-an area that has been largely overlooked by the Court. We have heard very little from the Court in respect to this, although it hovers in the background very significantly as the Court expands the scope of the equal protection clause, especially in regard to suspect classifications. An important decision in this area that has generated surprisingly little attention is Jefferson v. Hackney.21 The Court was confronted with a de facto discrimination on the basis of race in the sense that the statute before it operated in a statistical fashion to discriminate against minority races. The case involved a fairly complicated Texas system of funding welfare programs. It was demonstrated to the Court, to put it generally, that the state more generously funded those public assistance programs that benefitted groups with relatively small minority populations than it did those welfare programs whose recipients were more heavily black and chicano. The argument was that since the system operated to discriminate against minority groups, it ought to be judged by the strict equal protection standard of review. Yet, in an opinion by Mr. Justice Rehnquist, with no real dissent from the basic proposition, the Court held that so long as there was a rational

basis for the state's classification, it would survive equal protection attack.

Another highly important aspect of equal protection doctrine on which the Court seems to have carefully avoided making any significant statement concerns "benign" or "reverse" discrimination. So far as race is concerned, the Court totally sidestepped the problem in the De Funis22 case. In two sex discrimination cases, the Court upheld such a classification: Kahn v. Shevin,23 involving a discrimination against widowers in the grant of property tax exemptions; Schlesinger v. Ballard,24 involving a discrimination against male naval officers in the matter of mandatory discharges. In both of these cases the Court used the rationality test, and it is very difficult to distinguish these cases from those in which it has used this very same test to invalidate discriminations against women.

This leads to the last matter I would like to comment on for just a few minutes-the tremendous ambiguity that exists with respect to suspect classifications, that aspect of equal protection, so far as the Burger Court is concerned, that appears to be the most fruitful area for expansion.

The Court under Chief Justice Burger has certainly not retreated to any meaningful degree from the notion that discriminations against racial minorities are suspect. It has also made clear what was unclear before the Burger Court-that discriminations against aliens are also to be treated as suspect. This means that almost all discriminations against aliens are going to be held invalid. I say "almost all" because the Court has left open the issue of those particular kinds of state discriminations against aliens that deal with matters peculiar to citizenship such as voting and holding high public office. Beyond this, the Court has also left open the very interesting question of federal discriminations against aliens, that is, whether the national governmenfs very broad power over immigration and naturalization granted in Article I will result in the Court applying a different equal protection standard for discriminations imposed by the federal government as opposed to those imposed by the states. That would probably be about the only area of equal protection adjudication in which the Court is going to treat federal discriminations differently from those by the states.

But when one looks beyond race and alienage at the opinions of

the Burger Court, there is substantial ambiguity and confusion. The sex discrimination cases are illustrative. In the past several years, the Court has struck down two statutory discriminations against womenReed v. Reed25 and Frontiero v. Richardson.26 Both decisions used the rationality test despite the fact, I think, that by any reasonable standard the statutory classifications were perfectly rational in accomplishing a permissible government purpose. On the other hand, when the Court was confronted, in Geduldig v. Aiello,27 with a statutory classification that looked as though it were a discrimination against women-a California statute that denied disability insurance benefits for pregnancythe Court held it to be not violative of equal protection because it was not sex discrimination.

Geduldig raises some fascinating issues as to how discrimination is to be defined. Nonetheless, it is pretty difficult, I believe, to justify the Court's conclusion that when a particular trait that is common exclusively to only one of the sexes is involved, that that is not sex discrimination. At the same time, when confronted with statutory discriminations in favor of women, the Court has had little difficulty using the rationality standard to uphold those classifications.

So, I think that we still don't know precisely where the Court is so far as sex discrimination is concerned. The record is far from clear that the Court is willing to strike down every form of sex discrimination, even those against women, as is evidenced by the Geduldig case. Nor is it wholly clear that the Court will uphold every discrimination in favor of women. But there is no doubt that a majority of the Court has been unwilling to go one inch beyond the rationality test, despite the fact that its use in this area involves a good deal of waffling and fudging.

The other two major classifications that advocates have put forward as being suspect are illegitimacy and poverty. Again, it is very difficult to make any doctrinal sense out of what the Court has done. In Weber v. Aetna Casualty and Surety Co.2" it came very close to holding that illegitimacy was a suspect classification. ButMr. Justice Powell writing for the Court managed at the very end of the opinion, in striking down a state discrimination against illegitimate children, to say that

the state interest was neither compelling nor rational and thus couldn't be upheld under any circumstances.

Last term, in Jimenez v. Weinberger,9

the Court speaking through Chief Justice Burger was careful to point out that it had not decided whether illegitimacy was a suspect classification. The Jimenez case has drawn little attention. But the doctrinal approach, particularly coming from Chief Justice Burger, is absolutely fascinating. The chief justice, who has consistently berated his colleagues for using the irrebuttable presumption notion in a series of cases under the patina of the due process clause, then uses it himself in the Jimenez case, but this time in the process of finding a violation of equal protection.

Finally, the poverty classification seems to me to be one that also manifests the ambiguity of the Burger Court in the matter of equal protection. I guess that it was widely believed that if the suspect classification category were going to be expanded, a de jure discrimination against poor people, that is, the state singling out poor people for adverse treatment, would easily qualify. I think that if one went through the statute books of the fifty states and of the United States Code, one would find very, very few such laws that explicitly discriminate against poor people. Yet rwhen one came to the Court's attention, the Court managed to uphold it. James v. Valtierrad0 was a case involving a California constitutional provision which required that, in order to have low-cost housing built in any particular area, a special hurdle had to be overcome-it had to be approved by referendum. The Court found no violation of equal protection, saying that there was no explicit discrimination against poor people but in a way which, I think, just will not withstand analysis.

On the other hand, the Court has in a number of decisions struck down de facto discriminations against poor people. It seemed in the first years of the Burger Court that that was going to be an area of potential expansion. There were three cases-Williams v. Illinois,31 Tate v. Short2 and Boddie v. Connecticut33-in which the Court invalidated de facto discriminations against poor people. Williams and Tate rested on equal protection; the Boddie decision went on due proc-

ess grounds because Mr. Justice Harlan wrote for the Court. Williams and Tate involved the question of indigents having to go to jail after a criminal conviction because they were unable to pay the fine. The Court, following the decisions of its predecessor in Griffin v. Illinois"4 and Douglas v. California,35 held that it was violative of equal protection to discriminate against poor people in this way. Although using the due process clause in Boddie, but effectively following the earlier view of the equal protection cases, the Court struck down a requirement that persons pay filing fees in order to obtain a divorce. Note that none of these were statutory classifications that explicitly singled out poor people for adverse treatment. They simply operated adversely so far as poor people were concerned. Yet the trend was halted in the case of United States v. Kras,s6 when the Court held that equal protection did not require the government to waive the fee for an indigent in order to become bankrupt. And the same result was reached in Ortwein v. Schwab37 in respect to a fee in order to get judicial review of adverse welfare decisions, the Court holding that this de facto discrimination against poor people was not violative of equal protection.

Overall, poor people have fared better than racial minorities so far as de facto discriminations are concerned. But in the one case involving an explicit discrimination against the poor, James v. Valtierra,3 the Court was unwilling to find an equal protection violation. Thus, this series of decisions dealing with suspect classifications illustrates the proposition, I think, that one cannot discern or predict any really meaningful doctrine, so far as the Court's equal protection decisions go.

I will stop there.

PROFESSOR SULLIVAN: Thank you. Mr. Gunther, it's your turn.

PROFESSOR GUNTHER: Well, I think enough has already been said to indicate that a group of law professors getting together to talk about equal protection may give constitutional law a bad name. I think it is clear that no one here has a magic wand to straighten out what continues to be the most chaotic, least thoughtfully considered, and least adequately justified area of constitutional law.

I suppose one can say that at the end of the Warren era doctrine was a good deal clearer, though in large part unjustified. What the

Warren Court did, as Professor Forrester has said, was increasingly to expand strict scrutiny of suspect classifications without explaining how it got there. Moreover, the Court developed or suggested a whole range of fundamental interests which triggered strict scrutiny. Very often, there was indeed clarity, but also lack of proffered justification.

The appeal of the equal protection clause to the Warren Court was evident. I think it was a two-fold appeal. Partly, the appeal lay in the fact that equal protection did not carry with it the bad reputation that substantive due process had. Of course, no good, modem, liberal justice would openly engage in substantive due process adjudication. Equal protection was a fairly inert and harmless looking doctrine, a doctrine which did not carry a great deal of baggage-baggage of disreputable history. The second appeal was obviously the appeal of egalitarianism and equality. As Mr. Kurland long ago pointed out, it was a great banner to carry, although a most difficult one to apply, for equalizing across the board was neither historically nor constitutionally justifiable. Nor was it anything any rational Court would try to do in terms of eliminating all classifcations, or all differential impacts of legislation, or all differentials in society. So, by the end of the Warren Court we knew roughly where we were, though not why, and not where else we might be going. Most of us were uncertain about what new interests might be included within the purview of the new equal protection, by analogy to other interests which were regarded as fundamental. And it was hard to explain how the Court got to new suspect classifications and fundamental interests once it went beyond the obvious area of race discrimination. But all observers knew very well that if they could not persuade the Court to discover a trigger for strict scrutiny, their cause was hopeless. The deferential attitude was about as harmless to challenged legislation as the strict scrutiny attitude was a guarantee that the law would be held invalid.

Well, what has happened with the Burger Court? The Burger Court is less predictable. The Burger Court is a lot less clear in its doctrine. The Burger Court has not done much better than the Warren Court in justifying what interventions it has undertaken. My attempted argument of a couple of years ago was not that the Burger Court had made sense but that some of its steps might be explained in a way which would make some sense if the Court were willing to articulate the reasons and apply the standards consistently. The one thing that one can say about the Burger Court's performance in equal protection is that equal protection has remained an interventionist tool. That, I suppose, is a reflection of the phenomenon that people putting

on those black robes and sitting in Washington-no matter how antiinterventionist they may be in theory and how strict constructionist they may be in profession-cannot resist the temptation to contribute their two cents to a lot of issues that grab their attention. I don't think that is a bad thing. I think the Constitution justifiably warrants some intervention. The real question is: What are adequate justifications for the intervention?

The phenomenon that I commented on in my article, as Mr. For-

rester mentioned earlier, is that the minimal rationality standardwhich had been a very deferential standard in the Warren years, and which was equivalent to saying that if a case fell into that deferential area of the old equal protection, the law would be sustained-that standard has in the 1970's become a basis for intervention. Recognizing the difficulties of model building and simplifying, I nevertheless tried to argue that the Warren Court had been too deferential in applyI did not try to set ing the old equal protection, rationality standard. up in my simple model a third layer of intermediate scrutiny. Rather, I suggested some closing of the gap between strict scrutiny and deferential scrutiny (or non-scrutiny). I argued that the Court could justifiably examine, with some genuine scrutiny, legislation even if it did not involve a suspect classification or impinge on a fundamental interest (The latter, of course, hardly needed the equal protection or right. In that area of rationality review, I clause to justify strict scrutiny.) urged that the Court could do more by bending over backwards less, by not hypothesizing conceivable purposes. I argued, for example, that classifications should be tested in terms of articulated or actual stated purposes, instead of testing the necessary "fit" in terms of purposes the Court's imaginativeness had supplied. That search for purposes is a thorny area which we can come back to.

The more difficult, second part of my appeal is that, instead of simply saying "a reasonable man could conceive of a connection" between means and ends, the Court would exercise a real, though modest, scrutiny of the relationship between means and ends. In short, the Court would test in terms of articulated rather than hypothesized purposes, and it would ask whether the means truly did, within some area of permissible flexibility, promote those ends.

Now you are quite right, Professor Forrester, that the Court has not written an opinion saying "that's the new test." I should add that when I wrote the Foreword,39it was the first term the Court had really

significantly struck down laws while invoking the old rationality standard; and I did not find a single case among the half dozen examples of that year that satisfied my model. I said in effect that genuinely all of the cases that I found which invalidated on the basis of the rationality test were in fact Mickey Mouse cases. They were cases where the Court had to some extent fudged: it had applied greater scrutiny than it asserted, and it had presumably done so on the basis of perceived but unarticulated values.

In short, the cases on which I built my model were not nearly as value-free as the Court's opinions suggested. Now one conclusion that one can draw from that is that rationality review is bound to be a hopeless effort, inevitably a facade for obscuring interventionism. The conclusion which I tried to draw, perhaps in naive optimism, was that though those cases did not do the job right, the justices could do something sensible by taking seriously what they were saying as to standards in those cases.

What has happened since then, and one can count heads, is that just about everybody on the Court has now written an opinion at one time or another which uses significant ingredients of something similar to my argument. There are sometimes examples in Powell opinions, and Brennan ones, and others. Justice Brennan's dissent in Schlesinger v. Ballard0 last fall is among the examples. There are others refusing to hypothesize purposes and insisting on finding a substantial connection between nieans and ends. The Court, however, has not done it consistently, or even with adequate explicit care-except perhaps Wiesenfeld4' this week. You can count heads, however, and find considerable support: Brennan and others especially in dissent; Powell in several concurrences, as well as dicta in majority opinions, as in McGinnis v. Royster.42 The majority has used it in some cases, in effect, without articulation.

Though the Court has not come to grips with it as a generalized theory, in particular cases it is very useful to litigants. The most recent case, Weinberger v. Wiesenfeld43 is in a sense very much like that. It was a sex discrimination case, and it was argued very much along newer equal protection grounds. Women's rights advocate Professor Ruth Bader Ginsburg of Columbia had originally submitted a long brief in

Reed v. Reed44 arguing that sex should be a suspect classification. Those fifty-some pages of fine argument got nowhere with the Court. The Court struck down that law on what purported to be a rationality standard, which I do not think could be explained without some special sensitivity to sex classifications which they were unwilling to avow.

In cases since, the arguments for sex as a suspect classification have understandably become weaker and have been diminished; and the arguments against particular types of legislation have emphasized lack of connection between means and articulated ends. Again, some of those cases cannot be explained in terms of the formulas used. I suppose Weinberger v. Wiesenfeld,45 of last Wednesday, may come closest of all the decisions so far to applying the "newer equal protection" in a straightforward, genuine way, without hidden factors inducing an actual scrutiny more intense than the asserted one. It is interesting that eight people on the Court, everyone that voted, with Justices Powell and Rehnquist writing separate concurrences, all went along with the basic approach of Justice Brennan's majority opinion, an opinion which is simply an examination of the legislative purpose as it appears from the legislative history and the face of the statute. It is unwilling to hypothesize other purposes or to accept alleged purposes without basis in the record. And having discovered the actual or articulated legislative purposes, the Court asks: Does the gender-based classification in this case make any contribution to furthering those purposes? The Court refuses to find other conceivable purposes, limits itself to the actual purposes that came out of the legislative history, and finds those purposes not significantly furthered by this classification. And, happily, they then strike down the classification. And rightly so, I believe, and in accordance with the model I tried to set forth. There are a few cases similar to that. But-unfortunately, I think, for the future of "newer equal protection"-this variety of interventionism is not yet an across-the-board phenomenon. So far, the minimal-rationality-with-bite approach is being applied in an ad hoe manner.

I think that what we have is a group of justices who can't resist intervening sometimes; by and large, a new group of justices who have not yet developed an adequate feel for connecting one case in one area with another. They respond to situations in terms of particularized contexts. "Newer equal protection!' is a convenient test to invoke occasionally during this groping, searching period. It at least makes a little-bit

more sense than the nonsense of the irrebuttable presumptions analysis, which is essentially equal protection analysis under a completely misleading name. But the "newer equal protection" won't be respectable and truly defensible unless and until it is taken more seriously as a generally applicable rule.

I suppose that I am less hopeful now than I was two years ago that the Court will come up with a more coherent explanation of what they are doing, with consistent applications. I recognize more difficulties now than I spoke about in the Foreword, as to both purposes and means, and in application. I would hate to be trying to decide some of the cases which would be thrown at me to decide. My continued, limited optimism comes from the fact that the sheer accumulation of cases is such that there may be some institutional pressure to try and sit back, particularly as justices get more experienced, to try and make more coherent sense out of this. I think it is possible to make some sense out of it. It is not offered to us by the Court today. It is ironic that Chief Justice Burger is the one who talks most often, going around the country, telling everybody that the courts are getting flooded by too much litigation. I can't imagine a more flooding device than to be as erratic and ad hoc-ish as this Court is being in the use of equal protection. Why shouldn't one file a suit in terms of the lack of ends-means connections, as well as the other debris that floats around the books, to see if one can win? It is not exactly a litigation-stifling device. On the other hand, I do not expect the Court to agree to what Justice Rehnquist's position was at one time: to have broad deferential attitudes everywhere outside the race area. It is interesting that Justice Rehnquist, for the first time as far as I know, concurs in Wiesenfeld46 and finds a constitutionally inadequate connection between means and ends in an equal protection case. So, he too has joined the team outside of the race area to find equal protection an interventionist device, sometimes. How much is "sometimes" and where is "sometimes" is beyond the scope of this discussion, I hope.

PROFESSOR SULLIVAN: Professor Kurland will now have his opportunity to either support or demolish the statements which have previously been made.

PROFESSOR KURLAND:

I am not going to do either.

It is quite clear to me, and I expect to you, that there is not much left to be said on the subject. But I haven't come all this distance to sit here in silence or merely for the purpose of enjoying this climate.

Mr. Gunther, at the close of his remarks, made a statement reminiscent of Thomas Reed Powell's brief restatement of the commerce clause of the Constitution, which, as I recall, was that the federal government may regulate interstate commerce. Part two was that state government may also regulate interstate commerce, but not too much. How much is too much, he added, was beyond the scope of this restatement.

My own preference for epitome of the Court's equal protection cases would be a scene in Hamlet, in which he is walking on stage and reading a book. Asked what it is that he is reading, he said, "Words, my lord, words." And I think that is what the problem is with the so-called doctrines of the equal protection clause. They are only words.

We talk about doctrines as if they were realities, but I think that by now you have learned that there is very little, if any, substance to the socalled doctrines of the equal protection clause, whether it be the "new equal protection" or the "old equal protection." For me it is quite clear. The new equal protection, like the old equal protection, is the old substantive due process. This means, as pointed out to you already, that the Court will undertake to tell the state and federal legislatures when they have gone beyond the bounds of what the Supreme Court thinks it is appropriate for them to do. The difference between the new equal protection and the old substantive due process is essentially the difference in the hierarchy of values of the Court.

The even older equal protection clause paralleled the old due process clause. That is, there was a subordination to the legislative will, which, I think, was what was originally contemplated by those who framed the Fourteenth Amendment. I must say it is within these terms that Mr. Gunther's third doctrine could become viable. If it is going to become viable at all, it is concerned with means and not ends.

In short, there are a lot of rationalizations provided by law professors indirectly, and immediately by law clerks, who submit these lengthy dissertations to their justices for their signatures and dissemination as the wisdom of the highest court of the land.

I have really only one or two points to make that may not yet have been made here. One that I think is of some importance is to recognize that the language of "strict scrutiny," the language of the so-called new equal protection clause, is derived essentially from the First Amendment cases; the First Amendment cases in which the argument was made by Mr. Justice Black and by others for the "firstness" of the First Amendment. It is this language of legislative presumption that you find floating through the opinions of the Court now dealing with equal

protection rather than the First Amendment. The same kinds of burdens on the states, the same kinds of judicial limitations on exercise of state powers, are found in the equal protection area that once were the concern of the First Amendment area.

The second point is that both in the First Amendment area and in the equal protection area the Court speaks in terms of irrebuttable or unrebuttable presumptions. The essence of most of these cases is to be found in allocating the burden of proof or the burden of persuasion. With the assignment of the burden of persuasion you achieve a resolution of the outcome of the controversy, as those whQ are sophisticated about the practice of law have understood for a long time. One might say he doesn't care what the rule is, so long as he can assign the burden of proof. Once having assigned the burden of proof, it is very easy to say that, to hold that, it has not been carried.

Let me say third, and last, that we seem to have evaded, up until

this point-because it is an almost impossible problem for resolutionwhat do we mean by equal protection, or more clearly, what do we mean by equality? Here, one might take notice of the fact that in the equal protection clause the Constitution uses the word "equal" as an adjective. It speaks, I like to think, of a requirement of equality of treatment. When we talk about equality as if it were the same thing as equal protection, however, we tend more to be talking about equality of condition. Equal protection has become a noun and is no longer an adjective. And it is never clear to the justices or those who read the justices' opinions whether the question they are talking about is equality of condition of equality of treatment. It is quite clear to many of the professiorial commentators that what they are seeking is equality of condition. For them the equal protection clause is the only vehicle; it permits equality of conditions to be imposed by the judiciary. And that is one of the reasons there is such strong support in the academic writing for the equal protection opinions of the Supreme Court.

PROFESSOR CHOPER:

I would add one or two points. First, I totally agree with the view that many of the developments in equal protection litigation have been nothing more than the old substantive due process. And I think it is important to recognize that, in addition, the irrebuttable presumption device is also nothing more than substantive due process. So, too, has been the Burger Court's expansion of the notion that constitutional rights exist even though nowhere mentioned in the Constitution, a notion most notably put forward in the abortion cases.

Now it is also true that by the end of the era of the Warren Court there had been a series of cases which could also be subject to this description. But whether one wants to be critical of the results or not, the Warren Court decisions were quite straightforwardly stated, and they also were fairly limited. It's clear that the Court made a constitutional right out of the right to vote, although it did so under the aegis of the equal protection clause. Similarly, the Warren Court revived or recreated a constitutionally protected right to travel. And it may well have been that if the Warren Court had continued, a large number of other essentially substantive constitutional rights would have been developed, again under the aegis of the equal protection clause. But the decision in Dandridge v. Williams,47 in which the Court upheld the Maryland maximum welfare grant statute, seemed to put an end to the "fundamental rights" doctrine. If that had gone the other way, then it may well have presaged a significant expansion of "fundamental rights" under equal protection-in essence, substantive due process.

But I am not at all confident that there would have been a majority of the Warren Court at the end that would have come out differentiy in Dandridge. It is clear, for example, that Mr. Justice Black was not about to go that route, and there was a strong indication that the chief justice himself was not about to do so, as evidenced by his dissenting opinion in Shapiro v. Thompson,4 in which he argued that residency requirements for welfare did not violate equal protection. In any event, we know that the Burger Court formally called a halt to all of this in Dandridge. This was made even plainer in the school finance case from Texas in which the Court indicated that it would only occasionally hold a particular right to be protected by the Constitution and then subject any restriction of it to strict scrutiny when there was a classification made. Otherwise, the Burger Court said that it was at the end of the road in respect to "fundamental rights" and indeed there are some cases that bear that out.

But the fact is that it is only in some cases. Take the decision in Village of Belle Terre v. Boraas49 where the Court applied the most deferential rationality standard despite the fact that there were lurking rights that had been held protected under the Constitution. At least a reasonably respectable opinion could have been written coming out the other way in Belle Terre. But the Court simply stated that it was

not going to apply strict scrutiny. On the other hand, they did apply strict scrutiny in Eisenstadt v. Baird5" without admitting it. They did it again in the food stamp case, United States Department of Agriculture v. Moreno,51 again without admitting it. They said that they struck the law down on grounds of irrationality, as they also said in Lindsey v. Normet5" when invalidating a double bond for appeal provision for tenants who had been evicted under the Oregon procedures.

While it may be that, in the main, what the Burger Court has done is not far different from what the Warren Court was doing, I think it is much less predictable and much less candid. Whether one agrees or disagrees with the direction that the Warren Court had taken, at least it was mainly done quite openly. I see Phil Kurland shaking his head and I am anxious to hear his comments on that, although I have seen some of them on occasion in the past. I believe that the Burger Court is less predictable, more lacking in candor, and engaging in much more fudging and waffling. PROFESSOR GUNTHER: I will register a partial dissent. I don't think the Warren Court was all that candid, but I leave that to Phil. As I said earlier, I do think the Burger Court is unpredictable. I think that some of your adjectives and nouns are a little harsh. I think one ought to distinguish among members of the Burger Court. I think some are trying harder and doing better at trying to come to grips with the legacy of doctrine and trying to build a new body than are others. Justice Powell is being more critical of some of the slipshod stuff that an occasional majority or plurality opinion comes up with, and he is not the only one who is trying more diligently to come up with coherent statements.

The emphasis on the similarity between the new equal protection and substantive due process is absolutely right. I think, however, that that risks losing sight of the fact that there is more to equal protection than the amorphous strands of the new equal protection.

The hostility to substantive due process was largely a hostility to the Supreme Court fishing out of thin air its own predilections with inadequate textual, structural and historical justification. It was hostility to the Court curtailing particular ends of legislation because they did not conform to particular values the majority had unjustifiably "discovered" as a brake on legislative objectives. But due process, as well as equal protection, has another significant ingredient-a focus on rationality of

means rather than legitimacy of ends. At least one can state that meansingredient distinguishably, although, I confess, the line between means and ends is hard to draw in practice.

The bad legacy of substantive due process and of ends-oriented equal protection involves a block to legislative ends, an imposition of judicial values as to objectives. That is something from which the Burger Court is overtly retreating-as to equal protection at least, though not as to due process, as Roe v. Wade"3 shows. Ends scrutiny under equal protection was something the Warren Court was far more ready to do and often unjustifiably so in terms of the constitutional basis for it.

The other part of equal protection which I have focused on can be effective judicial scrutiny which does not by and large second-guess legislative ends and which simply puts some pressure on the political process to air more clearly just how its means contribute to the ends it has chosen to articulate. Now it is a thorny area as I have said, though I think it is quite doable. I agree that much of the purported means scrutiny of the Burger Court has been disguised ends scrutiny. I do not think I am persuaded that means scrutiny must always be a subterfuge for imposing hierarchies of values without saying so. I think there is -maybe very limited-but some remnant of a justifiable judicial role with respect to taking seriously a requirement the Court has stated all along: that there be some minimal rational relationship between means and ends.

What I tried to suggest in the Foreword-and what I think has been done by some justices, some lower courts, and occasionally the Supreme Court-is to try to exercise that rationality review of means fairly and with relative neutrality (if there can be such a thing as relative neutrality). Most of the sex discrimination cases do involve a hidden ingredient and degree of value preference, a sort of semi-suspectness of gender-based classifications without quite saying so. As I have said, I think Weinberger v. Wiesenfeld54 this week may be a case at last to illustrate the proper approach even where sex isn't involved. The Wiesenfeld Court goes through an exercise which is replicable in other areas as well, of simply asking quite honestly just what you can get out of the record as to legislative purposes, and asking whether the chosen means make any real contribution to the stated ends.

I think that the means ingredient of equal protection has a legitimacy of its own. It's full of problems, the biggest one no doubt that it risks

use as a subterfuge for ends scrutiny under a different name. I do not think that we ought to give up on possible legitimate uses too quickly. After all, the Court purports to be doing it sometimes. And sometimesmore rarely-it even does so genuinely. I think one useful thing an academic may be able to do is keep yelling at the judges and their law clerks that they ought to try handling it more honestly, neutrally, generally and genuinely.

PROFESSOR KURLAND: I have just two remarks, if I may. The first is that the perfidy of the Warren Court is every bit as great as the perfidy of the Burger Court, and I am prepared to supply a bibliography on both subjects. I don't think I have been partial to one or the other. Thomas Reed Powell when introducing Mr. Chief Justice Stone at a law review banquet at Columbia, said he wanted to introduce a man who is neither partial on the one hand, nor impartial on the other. I think that the point made as to the lack of clarity or consistency of the Burger Court is well taken. But I think it's well taken essentially because there isn't a cohesive majority. It's easier to be consistent when you have a group of five, all of whom share a hierarchy of values, than when you have a Court which is essentially divided three, three, and three, and the three in the middle are not a cohesive group themselves. They just go to one side or the other depending on the issue involved. So, it is quite true that the Burger Court opinions in this area do not afford predictability. It's not, however, because of the statements of doctrine they contain, but because of the personal preferences of each of the jurists.

PROFESSOR FORRESTER: I would like to say that I am doubtful that the Warren Court, if it had continued would have extended the equal protection doctrine vigorously. In counting heads, Stewart, it seems relatively clear, has not fully embraced the substantive equal protection concept. His Frontero55 concurring opinion is really the swing opinion which kept the Court from putting sex classifications into the suspect category. Douglas has declared his hesitation in the Kahn" case. Warren, in the Shapiro57 case, indicated that he had doubt about the concept. Black, in the Harper"' case, clearly spelled out his repeated objection to such judicial intervention. Now that leaves Mar-

shall, if you need 'five votes. Here, I would like to read a statement by Marshall which I think is significant and which may' also describe the present status of the law in this field, or at least its actual resultoriented operation. In Rodriguez,59 he said,

I must once more voice my disagreement with the Court's rigidi[Citations omitted.] fled approach to equal protection analysis. The Court apparently seeks to establish today that equal protection cases fall into one of two neat categories which dictate the appropriate standard of review-strict scrutiny or mere rationality. But this Court's decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of is drawn. the basis upon which I find in fact that many of the Court's recent decisions embody the very sort of reasoned approach to equal protection analysis for which I previously argued-that is, an approach in which "concentration [is] placed upon the, character of the classification in question, the relative importance to the individuals in the class against of the governmental benefits that they discriminated do not receive, and the asserted state interests in support of the classification."60

the particular classification

In other words, Marshall seems not to accept the new equal protection doctrine as such, but to look upon equal protection as another exercise in balancing and weighing, or the sifting of the facts and the weighing of the circumstances, as in the Burton6' case.

Counting these five heads makes me dubious whether the Warren Court would have gone forward more strongly than the Burger Court in pressing the new equal protection concept. Certainly, so far as the Burger Court is concerned, you can't find a more interventionist decision in the books than Roe v. Wade,62 whether you agree with it or not. PROFESSOR SULLIVAN: May we then turn to some of the questions. Let me read them and invite the panel members to respond. Question number one is: What is the function of voluntariness, as distinguished from immutability, regarding the treatment granted by the Court to particular classes?

I will be glad to answer the question if I PROFESSOR KURLAND: correctly understand it. I think you are talking about what is, or

should properly fall into, a suspect classification and whether this includes only those classes, identifiable classes, made up of what are described by traits which are not changeable. I think, from what the discussion has been here, it is quite clear that race is an immutable class. In terms of race, you have the greatest protection afforded by the Court. The issue now is whether race is more than a suspect classification but one that is invalid per se. Sex-gender-is moving into that category, although, one might say that it is not truly an immutable characteristic, science being what it is. If you look at the groups receiving the greatest protection from the Court, it is those groups which are identified by immutable traits. PROFESSOR GUNTHER: Aliens are different. In Griffiths,63 one of the major cases finding alienage to be a suspect classification, an alien was not admitted to the bar, and was held impermissibly excluded. In that case, the alien claimant voluntarily chose not to become a citizen though she certainly could have become one. PROFESSOR CHOPER: I have always been somewhat enamored of the notion of using immutability as an important criterion in extending suspect classifications beyond race. It has always struck me that there is something peculiarly unfair in government disadvantaging people in respect to characteristics over which they have no control. Now, whether legitimate constitutional decision-making can be based on that sense of unfairness, and its similarity to race, so as to expand equal protection, is a question well beyond the scope of discussion.

Apart from the humorous suggestion that sex is not totally immutable, it is clear that illegitimacy is. It is pretty difficult to change who your parents were despite the advances of science. But what about poverty? This is a classification for which there has been very substantial effort made to find it "suspect." Certainly, at a theoretical level, poverty is not an immutable characteristic. People change that condition all the time. But, on the other hand, perhaps it is immutable in the sense that it is not, at least in the great range of instances, a characteristic that is held voluntarily. And it is interesting that the question from the audience drew the comparison of immutability versus something that is voluntary.

I think the factor of immutability has had its influence, although, as Gerry points out, Justice Rehnquist made quite a point in his dissent in the most recent alienage cases that the aliens there were voluntary aliens. But the Court has likely been influenced by the fact that most all of the laws that states have had discriminating against aliens apply equally to those who are not in that status voluntarily because they have not as yet

satisfied the minimum residence requirements in the United States to become citizens. PROFESSOR SULLIVAN: The second question is: Does the pendency of the Equal Rights Amendment help to explain La Fleur64 and especially the relationship of that case to Geduldig?65 PROFESSOR GUNTHER: Well I think the pendency of the Equal Rights Amendment has had some, indeed overt, influence on the Court. Some of the justices in Frontiero66 did not embrace the idea that sex is a suspect classification. Justice Powell's concurring opinion in that case, applying the rationality standard of Reed, explicitly did so in part because of reluctance to move to a controversial new constitutional frontier-to tackle a problem that might be taken care of elsewhere by the political institutions. But I don't think the E.R.A. is all that central. I guess I would not think that Weinberger v. Wiesenfeld,67 decided this week, causes trouble for the E.R.A. Wiesenfeld, by being quite skeptical of gender-based classifications via the rationality standard, achieves some of the objectives of the E.R.A., but it hardly makes it unnecessary-though it certainly goes further than other cases have gone. I will rephrase the next question slightly. PROFESSOR SULLIVAN: In light of some lower court developments, would you guess that the Burger Court will accept the doctrine that homosexuality is a suspect classification? PROFESSOR CHOPER: The difficulty with answering that question, it seems to me, is that much of what the Burger Court has done would point to that end. Homosexuality could fall on either of the two sides of the strict scrutiny test. It can be subject to strict scrutiny as being encompassed within the constitutional right of privacy. Or, if sex is becoming a suspect classification, and I certainly think it is, at least in respect to discriminations against women, then it's but a short step to encompassing homosexuality within the suspect group.

The difficulty is that, despite the implications of the opinions, I don't think the Court is about to take either step. In several opinions dating back to Griswold v. Connecticut,6" the justices have been very careful to exclude any implication that they would protect homosexuality. So I rather doubt that the Court would go that way. But the doctrines

are there, and they may be taken to cover homosexuality quite easily. Therefore, it is also easy to understand why lower courts might be treating discrimination against homosexuality as being subject to the strict scrutiny test. PROFESSOR KURLAND: I would disagree, as usual, with these gentlemen in terms of predictions and also in terms of the notion that Griswold v. Connecticut69 is going to be a barrier. Griswold, as you recall, was limited to the marital bedroom. It very quickly became, in Eisenstadt v. Baird,70 applicable to relations between persons of different sexes. I think this is a question like many, if not most, of the questions before the Court-is dependent on the attitude of the American public. Just as they were prepared when the American public seemed prepared to condone nonmarital heterosexual relations, I predict that the Court will not very long from now say that punishment for and discrimination against homosexual relationships cannot be condoned.

As Mr. Choper said, the doctrines are already there to the extent that there are doctrines. I always like to look into a crystal ball and make predictions of this sort but ninety-nine percent of the time they don't come true. PROFESSOR GUNTHER: I think in this area especially certain members of the Court can't be faulted for lack of candor. They made this as overt an area of substantive due process and moral sense judgments as imaginable. Even before the Griswold case, I guess the most elaborate of all opinions is Justice Harlan's dissent on the merits of anti-contraception statutes.71 With a very generous interpretation of autonomy and privacy rights under the Fourteenth Amendment, Harlan, in 1961, said that he recognized the societal and traditional concern with morality, and that his views regarding protected private activity did not extend to all areas of private, consensual sexual conduct including homosexuality. But I think the way he put it was really open-ended in terms of a reflection on what the accepted social norms were in the long range view, and these are all subject to change. PROFESSOR FORRESTER: It seems to me that the Court is responsive to the sensitivity of the American people. Just as they have responded to the matter of discrimination against women, which has grown in the public's attention, I think it is also possible that they may become more sensitive ultimately to discrimination against homosexuals.

I hesitated to participate in this, but I PROFESSOR SULLIVAN: would suggest that in this particular area the critical question is apt to be: What kind of discrimination is involved; that is, to what extent has the state attempted to interfere in any way, or to impose punishment or burdens because of homosexual activity?

The final question we have is one which asks for a comment on the male long-hair cases. The question says: "Comment on the failure of the Supreme Court to take one of these and decide it. Why has the Court hesitated?" PROFESSOR KURLAND: Let me say that over a recent period of time the Court was faced with two such problems. One was the question of the legality of the Viet Nam War and the other was the question of long hair in high schools. PROFESSOR GUNTHER: Mr. Justice Douglas has dissented on both. PROFESSOR KURLAND: That's right. I suspect they consider one question too big and the other question too small. PROFESSOR SULLIVAN: Do we have any comments from the floor? QUESTION: Professor Gunther's model suggests really two parts. The first part is to test the state's asserted purpose for the classification. The second part is weighing the classification once you have got over that hurdle. Is that so different from minimal rationality to be worth consideration, and, if so, is it a viable standard for the Court to use? PROFESSOR GUNTHER: Let me disagree with the first part. I think the model was not one to weigh the state justification. The model tried to avoid that. It merely tried to make the state articulate its purpose and justification; but it tried to avoid weighing the strength of the justification and tried to concentrate on a very different issue: of how much benefit there was-how much contribution of means to ends.

Now, as to the second part, the contribution of means to ends. Reed v. Reed73 is one of the formulations, as Mr. Forrester was saying, that relied on the Royster Guano case of the pre-1937 era. But as you go through the cases, that "fair and substantial" basis requirement survived the 1930's. The Court has not sharply distinguished as to rationality, as to how much contribution means must make to ends, though a few deci-

sions of the 1960's, McDonald4 and McGowan7 for example, seemed to have Chief Justice Warren asking for very little. In short, though Reed quoted the Royster Guano6 formulation of the substantive due process years, the Royster requirement went to means, not ends, and it is not one that the Court discarded in the years since. In other words, the Warren Court would have been capable of using, and in fact sometimes did use, that language, seeing it as being synonymous with minimal scrutiny. The Burger Court has increasingly used that language when saying something more is involved in means scrutiny than automatic deference. The Court, especially since Reed, has put it in terms of real contributions, substantial contributions, of means to end. How real and substantial? That is in large part a burden of proof problem. One way to view it is that it is up to the state, not the Court's imaginativeness, to explain it and to come forward with information to show relationships which aren't selfevident.

I think that is a viable approach, though one which has to be used carefully so that you don't sneak in your value preferences as to ends in applying it. My approach tries very hard to avoid second-guessing and sharply curtailing legislative ends.

QUESTION: Professor Gunther has suggested that the ad hoe approach of the Burger Court has promoted the flood of litigation in the equal protection area and created an institutional pressure to create more predictable standards to curtail the flood of litigation. Do you think the explicit adoption by the Court of a means-ends approach, as suggested by Marshall, could effectively act as a predictable standard to curtail the flood of litigation?

PROFESSOR GUNTHER: Well, that's a very awkward question. I suggested earlier that the Burger Court's actual behavior runs counter to the chief justice's concerns about keeping things out of courts. Obviously, if an explicit, across-the-board, "newer equal protection!' means scrutiny were adopted, it would not curtail the flood of litigation because a lot of commercial areas might be brought in. Still, I think that ultimately, if they took it seriously and strove for more consistency in the application of that standard, it would be adequately predictable. I think I could identify cases that would be frivolous under my standard because adequate showings as to means-ends relations would be evident. But a clear-

er adoption of my approach would open a whole new articulated category of review.

By the way, my approach is different from Justice Marshall's sliding scale approach, as in his Rodriguez dissent,77 which involves much more than means scrutiny. PROFESSOR KURLAND: Can you think of a case in which all nine justices would be with you making that determination under your standard? PROFESSOR GUNTHER: Well, can we split the difference? I can see where a majority of the Court would emerge on the standard. QUESTION: I would like to hear what a number of distinguished law professors feel would be the proper role of the Supreme Court. I am hearing a number of things from you this morning. One, that the Court establishes a hierarchy of values, personal values, and this is bad. Another, that they respond to directions of the American people and this is good. I am wondering if you feel that the Supreme Court should close down its doors, or if they should start appointing law professors to be justices, or if you feel that the justices are doing their part and you professors are doing your part in this creative interchange. PROFESSOR KURLAND: question. PROFESSOR CHOPER: I think I sense in the question a measure of justifiable criticism. It is much easier to sit back here and criticize what the Court has done than to come forward with a series of constructive suggestions as to what the Court ought to do. My basic criticism of what is now going on is the lack of candor. It is a very difficult question, indeed the most profound in all constitutional law, as to just how interventionist the Court ought to be in respect to individual liberty. That's really what we are talking about in these matters of equal protection, irrebuttable presumption, and rights implicitly guaranteed by the Constitution. I suggested earlier, and I still believe, that at least the Warren Court was more candid in what it did. Whether the values that it selected to be protected by the Constitution were historically justified or within whatever we define as a legitimate exercise of power by an anti-majoritarian branch of government in American society, is a question subject to long debate. But at least we knew what the Warren Court was about.

I think Mr. Choper should answer that

My own instinct is to prefer the two-tier analysis of equal protection

over some middle ground. The difficulty that I have with Mr. Gunther's proposal is that it would subject virtually every piece of legislation to judicial review. Further, it would bind the states to articulated ends. But who articulates those ends? Can a law that has been on the books for twenty or twenty-five years have its end articulated by a state executive official or, for that matter, a private party to litigation? The end so stated may be totally different than that of the legislature that passed the statute. In addition, how does a legislature articulate a law's goals if one of them is that the lawmaking body is just doing the best that it can at the time. The Court has approved this approach under the equal protection clause. It has said that the legislature may take one step at a time. I think it is critical to permit the legislature this prerogative, to allow it to respond to the pressures of the political process and extend the statute only so far, to exclude certain people from the receipt of benefits or regulate only certain people and not others.

I think the Court ought to focus more on the issue of what are the rights that are implicitly or explicitly protected by the Constitution. Roe v. Wade7" and the Griswold79 case were attempts to do that insofar as the right of privacy is concerned. I think they failed in seeking to distinguish that right from any other personal liberties that one might try to describe as constitutionally secured rights. But at least those cases raised what I believe to be the right issue for discussion rather than simply taking a statute which classifies, as all statutes do, and saying that the classification is irrational when it really isn't, at least as that term has come to be understood. PROFESSOR SULLIVAN: I would like to make one comment in response to the question. That is that there have been on the Supreme Court, in my years of watching the Court, at least four distinguished justices who came to the Court after having been law professors. PROFESSOR KURLAND: They didn't do any better than the others. PROFESSOR FORRESTER: With reference to the matter of candor, I can't see a great deal of difference between the Warren Court or the Burger Court in that respect or even the Marshall Court because we actually have a modus operandi in the judicial field that is result-oriented. I don't think you have to read too many constitutional cases to become aware of the fact that judges are inclined to do what they honestly believe should be done. They are likely to be quite consistent individual-

ly in the results that they reach regardless of the details of the case. One judge takes one direction and the other takes a different one. And you can predict how a case is going to come out by knowing only the facts and the name of the judge who wrote the majority opinion. Now, that means, in effect, that we are, and I hope this doesn't sound too cynical, in a system where judges decide cases in accord with their personal I believe the results should be reached on conscience and judgment. the merits. I don't condemn it. I think it is inevitable; I don't believe any of us could escape it. The question in my mind is whether it's time for the Supreme Court to say so, honestly and frankly. I don't know whether we could get away with that or not. My students in constitutional law surprise me by saying that it would not be desirable for the Supreme Court to be so frank and open.

PROFESSOR KURLAND: Do your students think the president is under an obligation to tell the truth?

PROFESSOR FORRESTER: Oh, yes! But, when the students are asked why they object to the Court's telling the truth, they say it would not be good for the American people to know that. The students know it. They think that is desirable; but they say that if the American people knew, they would lose confidence in the Court as the impartial arbiter, and that would adversely affect the rule of law.

PROFESSOR GUNTHER: That seems to be a Californian who made that remark. There is a question, and it may be of primary interest to law professors, but I don't think it ought to be, not only of how they psychologically arrive at that result and how they operate, but what justifies their actions. Are they supposed to be interpreting the Constitution, and where do they get that power from; do they want to be candid about it?

If a John Marshall goes strong for nationalism, as he certainly did, then at least he was talking about a value which has a fair amount of constitutional support in the history and the structure of our Constitution. He didn't have to come out that way in all those cases, for extreme national power. But he was operating within the ball park of constitutional language. Far afield from that, when you are talking about equal protection as imposing an equal condition, your burden is one heck of a lot greater than anything that's in that constitutional structure. I suppose if some of the critics of the Court really believe what they are doing, imposing their own will, I suppose we ought to be going forward and saying, "If that's what they are convinced they are doing, then they are

not doing the job. Do they not need a mandate from the American people to do that kind of a law reform?" I invite the panel to decide whether or not the Court QUESTION: might be on the point of abandoning the only settled element in their recent adjudication of equal protection law; that is if the equal protection clause of the Fourteenth is applicable with equal force and effect to the federal government through the Fifth Amendment? PROFESSOR GUNTHER: The most recent opinions do not distinguish between the limits on the federal and state government as to equal protection.

After Kahn v. Shevin,80 the government tried to defend Weinberger v. Wiesenfeldl as a benign classification. But Justice Brennan's majority said that we do not accept that benign label as conclusive-we look beyond it. And they found this purpose not benign, in light of the legislative history. But the Court reaffirms there, and in other recent cases, the modem stance that the Fifth Amendment's due process clause in effect incorporates the equal protection clause.

They jumped to that conclusion on the basis of the utterly preposterous statement in Bolling v. Sharpe"' that it would be inconceivable that the states could be subject to more limitations than the federal government. I don't think they are likely to move away from that except, perhaps, to recognize the special interests of the national government in such fields as alienage. But the basic synonymousness of the two clauses is by now well established I believe.

PROFESSOR CHOPER: I think the Court has been quite consistent in applying the same equal protection standard to the federal government as to the states-indeed, too consistent. I would think, for example, that there are certain kinds of discriminations that the federal government should be able to engage in that the states may not. Alienage is one. Unlike the states, Article I of the Constitution gives Congress broad power to regulate immigration and naturalization. Further, I think Shapiro v. Thompson,83 which involved the right to travel, also went unthinkingly too far in saying that the federal government is as incapable as the states in regulating people traveling from state to state. PROFESSOR SULLIVAN: I interrupt because we have run to the end of this video tape. I suggest that inasmuch as we set a 12:30 limit to

this discussion that, despite lacking tape for the remainder, we continue without the benefit of tape until 12:30. PROFESSOR CHOPER: Now, we can say all the good things. PROFESSOR KURLAND: May I put a question to Jess? PROFESSOR SULLIVAN: Proceed. In terms of both honesty of the Warren PROFESSOR KURLAND: Court and the various other problems, as an example, we remember that Mr. Chief Justice Warren said that if a man is deprived of citizenship he is deprived of all constitutional rights. And yet, the fact is that all aliens have the same-all of the same constitutional rights, so far tested, as citizens may have. Do you think that was an honest opinion on Warren's part?

I think I can get out of that pretty easily PROFESSOR CHOPER: because I don't think that Chief Justice Warren participated in any significant decisions which struck down discriminations against aliens. But, as an illustration of candor by the Warren Court, wholly apart from the correctness of the doctrines it fashioned, when it held the right to vote was effectively protected by the Constitution it said why. It relied on older decisions which had described the vote as preservative of all other In Reynolds v. Sims,"4 when it fashioned the one-person-onerights. vote rule, it said why. Whether right or wrong, whether based on history or not, the Court openly stated what it felt to be the critical importance of that particular right. When it fashioned, or perhaps refashioned, the right to travel, in opinions mainly by Justice Stewart, a right nowhere mentioned in the Constitution at all, at least Justice Stewart, in comparison, for example, to a decision like Roe v. Wade,"5 pointed to several constitutional sources and added that the right to travel was in the Articles of Confederation to begin with, suggesting that perhaps it was accidentally left out of the Constitution. PROFESSOR KURLAND: That is dishonesty. PROFESSOR CHOPER: No, it's candor. PROFESSOR KURLAND: No, it's just plain dishonesty. PROFESSOR CHOPER: May I distinguish between candor and accuracy, between openness and whether statements are historically justified or consistent with the sources upon which they rely. PROFESSOR KURLAND: Do you think candor has nothing to do with truth?

PROFESSOR CHOPER: truth; but, I think it is also different. PROFESSOR KURLAND:

-different

in defying-

I think that it has something to do with

PROFESSOR CHOPER: It seems to me that one can candidly state something that is inaccurate or untrue. But this is very different than conclusorily stating that a classification is wholly arbitrary or irrational. Take the classification in Reed v. Reed,"6 in which the states ought to decrease the number of contestants over who would be the executor of an estate. Well, it's perfectly clear singling out a particular group as noncontestants was going to reduce the number of contests. Yet the Court says it was arbitrary and irrational.

PROFESSOR KURLAND: Sort of like Brown v. Board of Education.87 PROFESSOR CHOPER: I might agree with Reed but it just seems to me that the Court in Brown v. Board of Education, whether the rationale was historically justified or not, tried with greater candor to justify the rationality of the doctrine than in Reed.

PROFESSOR FORRESTER: On the candor point, in Bolling v. Sharpe, regarding segregation in the District of Columbia, the Court had no equal protection clause to rely on, as in the companion Brown case. So they made use of the due process clause, declaring simply that it was "unthinkable" to hold the law valid. Of course, they were right on the merits. But what about the use of substantive due process to obtain the right result? Was that candor? Remember that the opinion was unanimous and included Justices Black and Douglas-repeated critics of substantive due process. PROFESSOR CHOPER: I think the Court was simply saying that it was unthinkable to have a different standard applying to racial segregation in the District of Columbia than in the states. Now whether that is right or not, and whether that is justified or not, is a separate question.

PROFESSOR FORRESTER: How about the "shocking" test of Rochin v. California?"" PROFESSOR CHOPER: Well, that's not one of my favorites, nor do I think it was an opinion that was representative of what we commonly describe as the Warren Court.

QUESTION: During the first session of the House of Representatives, Madison and Hamilton argued whether they should include the Bill of Rights. The product of that was the Ninth Amemdment, which gave to the people all rights which had not been enumerated. The Court succeeded in forgetting about the Ninth Amendment until Griswold8" in 1965. Justice Goldberg found in the Ninth Amendment a right of privacy. In his concurring opinion, I wonder whether you feel [sic] that a fundamental view of the equal protection clause was a large part? Do either of you men feel there is any role for the Ninth Amendment vis a vis equal protection?

I think the role depends upon the five PROFESSOR FORRESTER: votes in the Supreme Court. The Court is influenced by many factors including precedent. But, if the Court wants to expand the Ninth Amendment, they will do it and they can do it. Whether they should do it or not is debatable.

I certainly haven't seen any case made as PROFESSOR GUNTHER: I don't think the Ninth to the meaning of the Ninth Amendment. Amendment offers a short cut for explaining how you get to the new fundamental right-how you define it and justify it. In other words, even if it says, as Justice Goldberg seemed to say, that it is a confirmation of a legitimate Court power to identify fundamental rights, that does not really help-it is essentially a restatement of substantive due process, and it still leaves the task of explaining which rights are so fundamental, and why. I don't think the Ninth Amendment can be waved as a wand to avoid that kind of demonstration and justification.

PROFESSOR CHOPER: I just don't think it adds anything to other clauses of the Constitution that the Court uses. What Mr. Gunther said the Court can do. So whether fundamental rights might be revived through the Ninth Amendment or the due process clause in the Fourteenth Amendment isn't going to make much difference.

I wonder if it is not something like the PROFESSOR SULLIVAN: way Justice Stone categorized the Tenth Amendment. It is a truism that it is merely that which is not delegated. And the Ninth Amendment is something similar to that; that we have rights but they may not be spelled out specifically. The Court has a way of finding them in other provisions of the Constitution.

We are past the hour of adjournment. Let me on behalf of Hastings

College and the Hastings Constitutional Law Quarterly express our appreciation to our panelists. I hope that we may continue this kind of discussion at sometime in the near future.

--- FOOTNOTES ---

Part of the Constitutional Law Commons

* In 1972 Professor Gunther wrote a Foreword for the Harvard Law Review discussing the 1971 Supreme Court Term, in which he argued that the Court was evolving a new equal protection standard. Gunther, The Supreme Court, 1971 TermForeword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REv. 1 (1972). Because the equal protection panel used this very important article as a touchstone from which to examine treatment by the Burger Court of equal protection issues, there are repeated references to it throughout the discussion. For the sake of convenience, however, most citations to the article have been omitted.

[6451

HASTINGS CONSTITUT1ONAL LAW QUARTERLY

1. McLaughlin v. Florida, 379 U.S. 184 (1964). 2. Skinner v. Oklahoma, 316 U.S. 535 (1942). 3. 394 U.S. 618 (1969). 4. 411 U.S. 1 (1973). 5. (1969). 6. (1973).

....

7. McGowan v. Maryland, 366 U.S. 420 (1961). 8. Geduldig v. Aiello, 417 U.S. 484 (1974). 9. 416 U.S. 351 (1974). 10. Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966). 11. 404U.S. 71 (1971). 12. 123 U.S. 623 (1887).

13. 411 U.S. 677 (1973). 14. 404 U.S. 78 (1971). 15. 410 U.S. 113 (1973). 16. (1969).

17. 412 U.S. 441 (1973). 18. (1974). 19. 372 U.S. 726 (1963).

20. 404 U.S. 71 (1971).

21. 406 U.S. 535 (1972).

22. DeFunis v. Odegaard, 416 U.S. 312 (1974). 23. (1974). 24. 419 U.S. 498 (1975).

EQUAL PROTEUTION

25. (1971). 26. (1973). 27. 417 U.S. 484 (1974). 28. 406 U.S. 164 (1972).

[VoL 2

29. 417 U.S. 628 (1974). 30. 402 U.S. 137 (1971). 31. 399 U.S. 235 (1970). 32. 401 U.S. 395 (1971). 33. 401 U.S. 371 (1971).

34. 351 U.S. 12 (1956). 35. 372 U.S. 353 (1963). 36. 409 U.S. 434 (1973). 37. 410 U.S. 656 (1973). 38. 402 U.S. 137 (1971).

39. 86 HRv. L. REv. 1 (1972).

40. 419 U.S. 498, 511 (1975) ,(Brennan, J., dissenting). 41. Weinberger v. Wiesenfeld, 95 S. Ct. 1225 (1975).. 42. 410U.S.263 (1973). 43. 95-S. Ct. 1225 (1975).

EQUAL PROTECT[ON

44. (1971). 45. 95 S. Ct. 1225 (1975).

,

,,.

...

,,,,

HASTINGS CONSITrUTONAL LAW QUARTERLY

46, id at 1236 (Rehnquist, 1., concurring).

EQUAL PROTEMTON

47. 397 U.S. 471 (1970). 48. , 644 (1969) (Warren, C.l, dissenting). 49. 416 U.S. 1 (1974).

50. 405 U.S. 438 (1972). 51. 413 U.S. 528 (1973). 52. 405 U.S. 56 (1972).

53. 410U.S. 113 (1973). 54. 95 S. Ct. 1225 (1975).

55. (1973). 56. (1974). 57. (1969). 58. 383 U.S. 663, 670 (1966) (Black, J., dissenting).

59. (1973). 60. Id. at 98-99 (Marshall, I., dissenting). 61. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). -62. 410U.S.113 (1973).

63, In re Griffths, 413 U.S. 717 (1973).

64. Cleveland Bd. of Educ. v. ,Laneur, 414 U.S. 632 (1974). 65. 417 U.S. 484 (1974). 66. (1973). 67. 95 S. Ct. 1225 (1975). 68. 381 U.S. 479 (1965).

['Vol. 2

69. Id. 70. 405 U.S. 438 (1972). 71. Poe v. Ullman, 367 U.S. 497, 522 (1961) (Harlan, J., dissenting).

72. Subsequent to this panel discussion the Court has agreed to take a hair case.

Barry v. Dwen, 43 U.S.L.W. 3621 (U.S. May 27, 1975) (No. 74-1269).

73. (1971).

74. McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969). 75. McGowan v. Maryland, 366 U.S. 420 (1961). 76. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

77. , 70 (1973) (Marshall, J., dissenting).

HASTINGS CONSIT7UTIONAL LAW QUARTERLY

78. 410 U.S. 113 (1973). 79. 381 U.S. 479 (1965).

[VoL 2

80. (1974). 81. 95 S. Ct. 1225 (1975). 82. 347 U.S. 497, 500 (1954). 83. (1969).

84. 377 U.S. 533 (1964). 85. 410 U.S. 113 (1973).

HASTINGS CONSTrTUTIONAL LAW QUARTERLY

-6_

"404"U.S.71 (1971).

87. 347 U.S. 483 (1954). 88. 342 U.S. 165 (1952).

EQUJAL PROTEMrON

89. 381 U.S. 479 (1965).