This post is part of the Symposium on Unconstitutional Animus.
In his post summarizing his recent law review article, Dale
Carpenter draws from the Court’s discriminatory purpose jurisprudence, most
notably its 1977 Arlington Heights
case, to find guideposts for identifying animus. Thus, according to Dale, Arlington Heights factors such as the substantive or procedural
deviations reflected in the challenged law, and (more distantly in his
analysis) the degree of the law’s disparate impact, all feed into the
determination whether a challenged law reflects animus. That conclusion then triggers (in his fifth
step) a flipping of the burden of proof onto the government – and hence, a
decision by the court to go beyond traditional rational basis review, with all
its government-friendly presumptions.
I don’t necessarily disagree with Dale’s analogizing to Arlington Heights, although I don’t
believe every Arlington Heights
factor can be found in each and every of the canonical animus cases. (I think Dale agrees with that last
statement.) But I would caution about
taking that analogy to the next level.
If we follow the Arlington Heights
path, then a facially race-neutral/facially non-animus-based law, if unmasked
to be really race-based/animus-based, triggers heightened judicial
scrutiny. In other words, in the race
context, if a court concludes, based on Arlington
Heights, that a law is race-based, that’s not the end of the case: instead,
the Court then applies the strict scrutiny that it has continually cautioned is
“not necessarily fatal in fact.”
By contrast, when Dale lumps into the animus identification
phase of the analysis the burden-shifting that he identifies as his fifth step,
he seems to be suggesting that the result of those five steps should be (or
maybe just is, as a descriptive matter) the end of the case. I think that’s the correct approach. As I suggested in my response to Susannah’s
initial post, it seems to me that a conclusion of animus should end the case,
in the plaintiff’s favor. I’m concerned that
uncritical application of the Arlington
Heights analogy would lead courts to conclude that an animus finding simply
triggers more searching review. To be
sure, Justice O’Connor’s equal protection concurrence in Lawrence at least implies this latter approach. (In Lawrence
she wrote: “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.”) But that approach opens up the (perhaps just
theoretical) possibility that a law reflecting animus could in fact be upheld,
if it satisfies such heightened review.
Dale’s approach is different, as it “bakes in” to the animus determination
itself the heightened ends-means review that Justice O’Connor implies is a
distinct phase of the analysis.
This may be splitting hairs.
But I think analytical clarity is furthered by splitting these
particular locks. “Bad intent” is a
concept thrown around a lot in equal protection doctrine. Justice O’Connor herself tossed it back and
forth in her Croson opinion when she
expressed concern that race classifications of any sort carried a high risk of
the “bad intent” of “simple racial politics.”
Note that this latter version of “bad intent” was not the sort addressed
by Arlington Heights or Washington v. Davis: the Richmond
contracting set-aside was explicitly race-based, thus, there was no need to
determine if the government “intended” to classify based on race. Rather, the type of bad intent she addressed
in Croson was of the “ultimate” sort
– was the city’s MBE plan an unconstitutional use of race? – rather than of the
“threshold” sort – was the plan race-based, such that it triggered strict
scrutiny, which might or might not be fatal in this particular case?
Bill Araiza is a Professor at Brooklyn Law School. He can be reached at: bill.araiza at brooklaw.edu.