Absent searching judicial inquiry into the justification for . . . race-based measures, there is simply no way of determining what classifications are “benign” . . . and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to “smoke out” illegitimate uses of race.
—City of Richmond v. J. A. Croson Co. (1989)
The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.
—City of Cleburne v. Cleburne Living Center (1985)
So far, Part II of the book has focused on tools. Chapter 6 dispensed with the idea that our search for animus could start and end with an examination of the subjective mind-set of the lawmakers who enacted the challenged law. Chapter 7 supplemented that very limited tool with a set of commonsense factors that help us uncover discriminatory legislative action without having to play mind reader. Those factors serve as additional tools. With our hammers and saws laid out, it is time to unroll the doctrinal blueprint to see just what we are seeking to build.
Let’s begin this process by considering the implications of an Arlington Heights–type inquiry. Recall that that inquiry ultimately seeks to determine whether a government action was motivated by a desire to discriminate on the ground claimed by the plaintiff. What would be the implication of a conclusion that the plaintiff had in fact made that showing—that he had proven, in other words, that the defendant’s action was motivated by an intent to discriminate on the alleged ground—for example, on the basis of race? Intuitively, we would think that that would be the end of the case. After all, isn’t “discrimination”—in particular, race “discrimination”—wrong? But as I noted in Chapter 7, the answer—at least as a constitutional matter—is “no.” A conclusion that the state has “discriminated”—that is, that it has intentionally classified on the basis of race—simply triggers the relevant level of judicial scrutiny.
A moment’s reflection should make clear the logic of this perhaps non-intuitive statement. Today, it is settled law that government may use race as a classification tool in at least some limited circumstances. In 2003 and 2016, for example, the Court held that, respectively, the University of Michigan Law School and the University of Texas undergraduate college could use race as a factor in deciding whether or not to admit an applicant.1 Over a decade before the Michigan case, in a seminal case dealing with the allocation of city construction contracts, a majority of the Court also stated that under some limited circumstances government could use race in allocating such contracts. In that case the Court found that the City of Richmond, Virginia, had not justified its use of race and had not cabined its use of race carefully enough.2 But the important point here—reinforced by the Michigan Law School case—is that sometimes government can constitutionally use race as a decisional criterion. Not often, and only with care. But theoretically, it can.
What this means is that “race discrimination” or, more precisely, a government intent to classify based on race, is not always unconstitutional.3 The same applies to conclusions that government intended to classify on other grounds. For example, if a fire department insists that firefighters be of a certain height or weight, a woman might challenge such a facially sex-neutral policy as being motivated by a desire to exclude women. If the court agrees with the plaintiff, then, as with the race example, the next step is not simply to strike the law down. Instead, the next step is to apply to that law whatever scrutiny of sex classifications is appropriate. The law might fail that scrutiny, or it might survive it. (Today, in fact, it would likely fail it.) But the point is, that extra step—the application of that scrutiny—is a necessary part of the analysis.
That extra step might not be necessary or even justified when the plaintiff’s claim is based on animus. The argument here is straightforward: Animus is itself a constitutional violation. Unlike race or sex or any other kind of classification, which triggers some level of judicial scrutiny—stringent, lenient, or something in between—a conclusion that a government action is based on animus should be fatal to a law or other government action. Recall the Court’s conclusion from Cleburne, quoted (for a second time) at the start of this chapter: “The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded.”4 That statement was, by itself, enough to decide the case without any further judicial scrutiny. While this argument may be straightforwardly stated, proving it requires some work. The rest of this chapter will engage in that work.
This argument rests on an understanding of animus as the modern equivalent of factional, or class, legislation. As Chapter 1 explained, “class legislation” was the term nineteenth-century courts gave to legislation that, rather than pursuing legitimate governmental ends, instead aimed at benefiting or burdening such private groups. By the Civil War the class legislation concept was deeply entrenched in American legal thinking. Indeed, one of the most important congressional proponents of the Fourteenth Amendment described it as a bar on all such legislation.5
The class legislation concept rested on a foundation as old as the founding and as prominent as James Madison. Recall, again from Chapter 1, that that idea rested on Madison’s fear of what he called “faction,” which he defined in Federalist No. 10 as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or interest, adverse to the rights of other citizens, or the permanent and aggregate interests of the community.”
In the remainder of Federalist No. 10 Madison offered his solution to the problem of faction. But for our purposes what is more important is his definition of the concept itself. That concept provides us with the key insight that unalloyed majoritarianism is not adequate to protect rights. After all, he says, “majorities” can possess “interests” that are adverse to those of “the community.” And when majorities act on those interests, he implies, something has gone wrong with the lawmaking process.
As Chapter 1 explained, nineteenth-century courts built on this idea to create a constitutional law jurisprudence that insisted that government act only in pursuit of “the community’s” interest. And, again, because such community interests did not necessarily equate with the interests of a majority, this jurisprudence posited that an act of the majority—that is, legislation—was at least potentially at risk of being the unconstitutional expression of factional interests. As we saw in Chapter 1, this approach to judicial review took the form of an insistence that government action be properly grounded in the so-called police power—that is, the power to regulate for the public good.
But Chapter 1 also noted that police power jurisprudence ultimately foundered. In particular, courts found it difficult, and ultimately impossible, to credibly second-guess when the effect of a law as imposing special burdens or bestowing particular benefits constituted the necessary, if unfortunate, by-product of government’s pursuit of a public interest, or the law’s ultimate aim. (Recall the railroad liability cases discussed in that chapter.) Instead, in the Carolene Products case of 1938, the Court stated that in the future it would presume that most laws did in fact pursue a legitimate public interest, except, it tentatively suggested, in limited situations, which it identified in a footnote—the famous “Footnote 4” of that opinion.6 Those exceptions included situations in which the Court had reason to think that the political process did not allow all sides to fairly present their points of view about what the public interest required. In turn, one of those situations occurs when there is “prejudice against discrete and insular minorities.” But even the default “rational basis” test inquired into whether the challenged law promoted (or, in the test’s words, “was rationally related to”) a legitimate—that is, a public-regarding—interest.
What all this suggests is that non-public regarding legislation is unconstitutional. It might be difficult for courts to fully enforce this rule, as courts discovered during the class legislation era. That difficulty might then lead courts to adopt rules of thumb, or mediating principles such as suspect class/tiered scrutiny review, as a method of at least partially enforcing this rule.7 But neither that underlying difficulty nor courts’ attempt to mitigate it detracts from the force of the rule itself, which is a straightforward application of both Madison’s theory and the practice of judicial review for conformance with government’s proper police power. And even though the “police power” era of constitutional jurisprudence has passed into history, the ultimate question that jurisprudence sought to answer in a given case remains: Does the challenged government action reflect a constitutionally legitimate attempt to pursue the public interest? When a court can determine directly that a law fails that requirement, further scrutiny—heightened or otherwise—is unnecessary.
In some situations, however, such further scrutiny—indeed, quite careful scrutiny—may be necessary. Such scrutiny is justified in situations where there’s reason to think that the political process is unresponsive to the group the challenged law has burdened. In particular, Justice Harlan Fiske Stone, the author of Footnote 4, identified “prejudice against a discrete and insular minority” as “a special condition” that renders the political process unresponsive in this way. In turn, that unresponsiveness—the process’s inability to account for the interests of the group that ends up bearing whatever burdens the statute imposes—raises the specter of legislation that simply seeks to burden that group for its own sake.
To be sure, there are other ways of thinking about the implications of such a political process breakdown. If one believes that legislation is simply a commodity bought and sold in an unprincipled political market where competing interests jostle and compromise simply to obtain their own preferred outcomes, then an exclusionary process is problematic for a different reason: because it disables one interest from participating in that marketplace rough-and-tumble. However, given American law’s long and deep insistence that any government action at least seek to achieve a public-regarding goal,8 it makes sense to understand the implications of a political process breakdown in terms of the resulting likelihood that the excluded group will find itself the victim of (unconstitutional) self-serving legislation at the hands of the legislative majority.
However one conceptualizes the harm of exclusion from the political process, Footnote 4 eventually had significant impact on the Court’s equal protection jurisprudence—but not in the ways one might think. Writing in 1938, Justice Stone apparently had racial and ethnic discrimination on his mind when he wrote about “prejudice against discrete and insular minorities” generating such exclusion;9 ironically, though, the Court has almost never analyzed race discrimination issues through the lens of Footnote 4. However, during the 1970s, when the Court began to consider other types of discrimination as candidates for more robust judicial scrutiny, it experimented with using Footnote 4’s political process analysis as the foundation for that expansion. Most notably, in 1973 Justice Brennan provided a detailed process-based argument for according “strict scrutiny” to sex classifications. That argument attracted only four votes—and while a majority of the Court eventually adopted heightened scrutiny for sex classifications, it did not base that scrutiny explicitly on process-based grounds. However, during this same era the Court did use process-based language to consider according heightened judicial protection to classifications based on a variety of statuses, such as legitimacy and citizenship.10
As a practical matter, this period of experimentation ended in 1985 with the Cleburne case discussed in Chapter 3. Recall from that discussion that, even though the Court denied heightened scrutiny to the plaintiff group in that case (the intellectually disabled), it nevertheless ruled in its favor on the ground that the city’s denial of the plaintiff’s group home permit was grounded in animus. Now that we have a sense of the connection between tiered scrutiny/political process analysis, the underlying requirement that government action seek to promote a public interest, and, finally, the mirror image prohibition on government action based on purely private interests, we can understand the connection between Cleburne’s denial of suspect class status to the intellectually disabled and its animus conclusion. On this understanding, Cleburne’s conclusion about animus was an alternative way to answer the same question tiered scrutiny/political process analysis seeks to answer: Namely, is the government action in question grounded in a concern for the public good? In Cleburne the Court declined to answer that question through the path of holding the intellectually disabled to be a suspect class and thus according heightened scrutiny to the discrimination against it. Instead, it answered that question more directly—by holding, based on the evidence before it, that the city’s decision was grounded in unconstitutional animus.11
Let’s pause and recap. I started this chapter by recalling what Chapter 7 established: The Arlington Heights factors constitute a commonsense set of factors to consider when deciding when a facially neutral government action reflects an intent to discriminate on a particular ground, for example, race or sex. I then suggested that, while these factors might also be useful to an investigation of animus, the two inquiries—into discriminatory intent and animus—are in fact quite different. They are different, I suggested, because while intent to discriminate on a particular ground may put the challenged law on precarious constitutional ground—if, for example, the intentional discrimination was based on sex—it does not necessarily doom the law. Instead, such discriminatory intent establishes that government has in fact discriminated (in the way the Constitution understands, that is, intentionally) against a given group (for example, against women). That conclusion in turn triggers the level of scrutiny that is ultimately based on Carolene Products’ political-process-based analysis.
By contrast, our discussion of animus leads to a different result. That discussion—and in particular, its connection of animus to earlier notions of class legislation and even earlier notions of faction—revealed that, logically, a conclusion that a law was based on animus does doom a statute. No additional scrutiny required. Game over.
The Court has suggested precisely this analysis in some of its non-animus cases. For example, in City of Richmond v. J.A. Croson Co.,12 the Court struck down Richmond, Virginia’s race-based set-aside of a certain percentage of city contracts to minority-owned businesses. Croson is notable because it firmly established that even assertedly benign race classifications are subject to strict scrutiny, just like race classifications that were based in the bad old days of Jim Crow. One might well disagree with the Court’s insistence on equating the level of scrutiny for these two types of laws; indeed, many persons have. But for now let us think about the logical implications of the Court’s analysis.
In attempting to justify the Court’s equivalent treatment of race-based affirmative action with Jim Crow laws, Justice O’Connor, Croson’s author, did not dispute that some government uses of race could in fact be benign and, thus, constitutional. But she argued that strict scrutiny was necessary to “smoke out” illegitimate uses of race—uses of race that were motivated either by what she called “illegitimate notions of racial inferiority or simple racial politics.”13 For our purposes, “simple racial politics” can be understood as equivalent to “factional politics”—that is, simple desires by one interest group (here, racial) to grab benefits for itself.14 Such race-based factional politics, Justice O’Connor implied, was inherently unconstitutional. But race classifications themselves were not inherently unconstitutional—indeed, it was exactly to sift unconstitutional from constitutional uses of race that she insisted that all such classifications receive strict scrutiny.
But what if strict scrutiny—or heightened scrutiny more generally—is not workable? Recall Cleburne, from Chapter 3. In that case, the Court denied the intellectually disabled quasi-suspect status, in part because it did not think the group merited it. It also denied that status in part on concerns that courts could not competently apply it—that is, that courts could not easily distinguish between benign special treatment of the intellectually disabled and invidious discrimination. And finally, it denied that status in part because it thought that granting it would open the floodgates to other analogously situated groups seeking the same status. When political-process-based heightened scrutiny is not available, the Court implied, another approach would be to examine each particular instance of discrimination, to determine if it violated the core equal protection rule prohibiting animus-based action. And, of course, in Cleburne, it found that core rule to have been violated.
Animus analysis, therefore, can function as a substitute for the heightened scrutiny that is ultimately traceable to Carolene Products’s Footnote 4. As in Cleburne, it might appropriately substitute for heightened scrutiny when a court feels incompetent to impose such heightened scrutiny to all classifications affecting that burdened group or when it feels that doing so would raise too many similar claims from analogously situated groups. Animus, in other words, is a way to short-circuit the heightened scrutiny that flows when government is held to have intentionally classified on the basis of some suspect or quasi-suspect classification. As Justice O’Connor explained in Croson, such heightened scrutiny is a way of “smoking out” unconstitutional motivations. Those unconstitutional motivations are exactly what are encapsulated in the concept of “animus.” To use a simplistic analogy, a conclusion about animus is the equivalent of a go-to-jail card in the game Monopoly. The card does not say you stop somewhere else (that is, apply a level of scrutiny) on the way to jail. Instead, it says, “Go Directly to Jail.” So, too, with animus. A court’s conclusion that a given law reflects animus should mean “Do Not Stop to Apply a Particular Level of Scrutiny.” Instead, the statute should go directly to jail.
If you agree with the analysis up to now, you may be expecting the triumphant conclusion that, in fact, the Court’s animus doctrine understands a finding of animus in exactly this way—as a “Go Directly to Jail” card that does not involve stopping along the way to apply a particular level of scrutiny. Unfortunately, candor compels the conclusion that the Court does not appear to do this. And so we need to think about whether this analysis—even if it is attractive—contains within it a fatal flaw, or at least a bug, or whether, instead, the Court just doesn’t get it.
The first case we need to think about is the foundational case for modern animus jurisprudence—Department of Agriculture v. Moreno, the 1973 case discussed in Chapter 2 that coined the “bare desire to harm” language. In that case the Court, after quoting legislative history indicating Congress’s motive in defining “household” as it did for purposes of food stamp eligibility, and after criticizing that motive as “a bare desire to harm” a politically unpopular group, nevertheless went on to consider other, more legitimate, justifications for the statutory definition. Thus Moreno suggested that a constitutionally illegitimate purpose—the “bare desire to harm” “hippies and hippie communes”—was not necessarily fatal to the statute. That suggestion, of course, raises serious questions about our earlier, tentative, conclusion that a finding of animus is necessarily fatal to a government action.
A good place to start our thinking about this is with the language of Moreno itself. Up to now I have elided a potentially important qualifier to the Court’s “bare desire to harm” language. The key paragraph is set forth here in its entirety, except for citations to court cases and the legislative record:
Thus, if it is to be sustained, the challenged classification must rationally further some legitimate governmental interest other than those specifically stated in the congressional “declaration of policy” [about the overall goals of the food stamp program, which the Court had concluded did not support the “household” definition law]. Regrettably, there is little legislative history to illuminate the purposes of the 1971 amendment of § 3(e). The legislative history that does exist, however, indicates that that amendment was intended to prevent so-called “hippies” and “hippie communes” from participating in the food stamp program. The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, “(a) purpose to discriminate against hippies cannot, in and of itself and without reference to (some independent) considerations in the public interest, justify the 1971 amendment.”15
The key language here is the italicized phrase at the end, which is part of the Court’s quotation from the lower court’s opinion. Coming immediately after the sentence containing the famous “bare . . . desire to harm” language, that quotation referred to additional considerations—considerations “in the public interest”—as a necessary component of the statute, at least if the statute was going to be considered constitutional.
So far, this material supports the argument that, indeed, a statute may reflect animus but nevertheless may still be constitutional, as long as other “considerations in the public interest” exist. And indeed, the Court in Moreno then proceeded to consider the government’s more legitimate-sounding arguments for the statutory definition—arguments about fraud detection and prevention. The Court found those arguments wanting, but for our purposes that is not the key fact here. Instead, the important point is that the Court suspected animus, concluded that such animus would be insufficient to support the constitutionality of the law, but then proceeded to consider more legitimate government justifications. This hardly seems like an argument that animus is a silver bullet that kills a statute immediately.
Other foundational animus cases reveal similar ambiguities about the status of animus as a necessarily fatal flaw in any statute or government action. In Cleburne, the Court’s identification of the city council’s responsiveness to constituents’ dislike of the intellectually disabled did not stop the Court’s analysis in its tracks. Instead, it continued on, considering more legitimate-sounding justifications for the council’s permit denial (albeit with more skepticism than one would expect in ostensibly rational basis review). Thus, just like in Moreno, the Court’s seeming identification of animus did not stop it from further examining the law.
Justice O’Connor’s concurrence in Lawrence made explicit what seems to have been implied in both Moreno and Cleburne. Recall from Chapter 4 that in Lawrence she voted to strike down Texas’s same-sex sodomy prohibition on equal protection grounds. Justice O’Connor wrote the following in her separate concurrence: “When a law exhibits . . . a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.” This statement seems to decide the question pretty conclusively: When a court finds animus (“a desire to harm a politically unpopular group”) it does not just strike the law down. Instead, O’Connor described the Court’s equal protection jurisprudence as having “applied a more searching form of rational basis review to strike down such laws.” So much for the idea of animus as a doctrinal silver bullet.
Thus, contrary to our theory, the case law seems to support the proposition that a finding of animus is not sufficient to strike down a law. To be sure, the cases suggest that animus is enough to trigger heightened scrutiny, even if that scrutiny is ostensibly portrayed as simple application of the traditional, deferential, rational basis standard. But the scrutiny continues, even after the animus finding. That suggests, at least at first glance, that animus is not necessarily fatal to a statute.
To be sure, some scholars resist this conclusion. For example, Susannah Pollvogt, a prominent scholar of animus doctrine, argues that animus is in fact what she calls a doctrinal “silver bullet.” At other times she argues that the presence of animus “poisons the well”16 in the sense that it discredits other, more legitimate, justifications for a law. There is much to be said for the idea that animus is in fact fatal to a law’s constitutionality. Indeed, this book promotes exactly that proposition. But, as attractive as that proposition is, it is incomplete. In particular, it elides the question of how one determines whether animus in fact exists. Indeed, in her most detailed treatment of the question, Pollvogt writes,
In reality, when the Court identifies evidence of animus, it discredits the other purported state interests [justifying the challenged discrimination]. Thus, animus acts as a doctrinal silver bullet. This is appropriate, because if animus is, indeed, constitutionally impermissible, no law found to be based in animus should be permitted to stand.17
Consider the italicized words in that quote. There is a big difference between “evidence of animus” and a conclusion that a law is “based in animus.” That gap may in fact mirror the analogous gap between the Court’s seeming willingness to continue scrutinizing a law even after it uncovers evidence of animus and Pollvogt’s (normatively attractive) argument that animus is a “silver bullet.” If we are going to bridge this gap, we need to think more about how we discover animus and how much evidence is sufficient for us to conclude that it does in fact exist in a given case.
Other scholars have reached variants of this same tentative conclusion. For example, Dale Carpenter has argued that a law should not be struck down as based in animus unless animus “materially influenced” the government decision in question.18 Carpenter makes the clearly correct observation that government decisions are motivated by many considerations, especially when the decision is made by a multi-person institution such as a legislature. He thus suggests that unconstitutional animus must strongly (in his words, “materially”) influence the decision before that decision is fatally infected.
We can embrace a conclusion similar to Carpenter’s, but through a different route—one that has the potential of preserving the concept of animus as necessarily fatal—as Pollvogt’s “silver bullet.” To repeat, there is good reason to find a path that harmonizes Pollvogt’s conclusion that animus (however defined) should be fatal to a statute with Carpenter’s realization that the mixed motivations of government actors requires that we be careful in how we identify animus. Constructing a doctrine in which animus is necessarily fatal to a statute (or other government action) returns some coherence to the Court’s constitutional law jurisprudence. It makes the animus doctrine more closely parallel to the nineteenth-century Court’s concern with class legislation. Closer to the present day, it also places animus on the same level as the invidious uses of race and other classification tools that the Court in cases like Croson identified as necessarily unconstitutional.
The challenge is to determine whether we can explain the animus cases as cases in which the Court was seeking to determine if animus really was motivating the law. On this theory, the Court’s consideration of the government’s alternative justifications for the challenged laws could be understood as reflecting the Court’s search for the government’s ultimate motivation in enacting the law. If so, then these cases exhibit yet another parallel with the Court’s discriminatory intent doctrine—just like the intent cases, the animus cases are fundamentally about a search for the government’s intent.
Thus, before we concede that these cases reject our nascent idea that animus is in fact a per se constitutional wrong, we should think about whether the Court in these cases really was searching for animus and was indeed ready and willing to strike a law down once it found it—whether it was ready to fire the silver bullet, but only after it knew that it had the right target in its sights. Perhaps the Court, either without knowing it or just without saying it, was doing what it normally does when it seeks to uncover the intent lurking behind a facially innocuous government action.