Suspect classification analysis is dead. Or so it would seem.
As is well known, suspect classification analysis and the associated tiers of scrutiny framework are the primary doctrinal features of contemporary equal protection jurisprudence. How plaintiffs fare under these twin doctrines determines the ultimate fate of their equal protection claims. Accordingly, equal protection advocates often turn their attention to suspect classification analysis in crafting their arguments.
And yet, despite the profound impact of suspect classification analysis on contemporary equal protection jurisprudence, the doctrine sits much like an aging patriarch, exerting a level of control that far exceeds its actual efficacy. Indeed, suspect classification analysis was conspicuously absent in the United States Supreme Court’s most recent term, and it has been well over a quarter century since the Court last recognized a new suspect classification. The doctrine has been lambasted by scholars and jurists alike. Further, as this Article argues below, worse than being ineffective, suspect classification analysis actively inhibits the growth of equal protection jurisprudence.
This raises the inevitable question: is there anything of value to be salvaged from suspect classification analysis? This Article contends that there is. Rather than reading the Court’s suspect classification jurisprudence for the discrete doctrinal innovations of any one case, this Article takes the long view in an effort to discern from these cases a political theory and associated theory of judicial review—that is, the elusive normative philosophy of the Equal Protection Clause.
In taking this perspective, what emerges is a theory of judicial review in the equal protection context that focuses not on protecting minorities from the inevitable flaws of a majoritarian political process, but on protecting individuals from the social and political effects of laws that, based on objective characteristics, can be identified as tending to create and enforce permanent divisions between social classes—that is, a caste society.
Beyond Suspect Classifications,
U. Pa. J. Const. L.
Available at: https://scholarship.law.upenn.edu/jcl/vol16/iss3/4