Wednesday, October 01, 2014

Unconstitutional Animus: Araiza Responds to Pollvogt

Guest Blogger

Bill Araiza

This post is part of the Symposium on Unconstitutional Animus.

First, let me thank Susannah for organizing this online symposium, on a topic that is becoming more and more central to the Court’s approach to equal protection.  I have a few quick and tentative reactions to her lead-off post.

I think Susannah is right that a finding of animus at least sometimes triggers a shift of the burden of proof.  Cleburne is the clearest example of this phenomenon; as readers will likely recall, the Court in that case implied that it had searched the record for evidence supporting the challenged government action – thus suggesting that the government bore the burden of demonstrating the requisite rational relationship to a legitimate interest.  Other Supreme Court cases, though, don’t seem to me to reflect that shift.  Most notably, as she notes, the Court in Windsor did not seriously engage in testing DOMA against the interests asserted by its defenders.

More conceptually, I wonder about her suggestion that animus should merely trigger heightened review.  If in fact a government action is infected by animus (eliding, until the paragraph below, how much “infection” is required), then it seems to me that there’s an argument for finding it invalid simply on the strength of that conclusion.  As I will note in my own post, the modern Court’s concern about animus can be analogized, if only generally, to the late nineteenth/early twentieth century Court’s concern with “class legislation.”  Perhaps even more remotely, it can also be analogized to the framers’ concerns with factional capture of the legislative process.  If the analogy holds (and it might not), then an action’s infection with animus should doom it, just as a conclusion that a statute constituted class legislation did during the Gilded Age/Lochner Court.

The problem with this idea arises from the phenomenon of mixed motives.  As Susannah notes, it is quite possible that a statute will feature “some” evidence of animus.  Susannah’s analysis would have a court respond to such evidence by performing heightened review of the type she describes.  The idea, I assume, is that such heightened review will, to use the Court’s words from Croson, “smoke out” statutes that “really” (my word) reflect animus.  If I’m reading her correctly (and I might not be), then she and I don’t necessarily disagree that animus should doom a statute; instead, we simply disagree on how one finds animus. 

But maybe we disagree more than I think.  For example, if a court finds some evidence of animus, but concludes that the law passes rational basis review, I would think that she would have the court uphold the law, even if the evidence of animus was staring the court in the face.  In that case, a law would, in a very real way, reflect animus, yet she would favor upholding it.  I’m not sure I would.

Bill Araiza is a Professor of Law at Brooklyn Law School.  He can be reached at: bill.araiza at

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