ATTORNEY GENERAL OF NEW YORK v. SOTO-LOPEZ 476 U.S. 898 (1986)

The fragmentation of the Supreme Court in this case offered one more proof of the doctrinal disarray of the right to travel. The Court, 6–3, held invalid a New York law giving military veterans a preference in hiring by the state civil service, but limiting the preference to veterans who had been New York residents when they entered the service. Justice william j. brennan, for four Justices, concluded that the law was a "penalty" on the right to free interstate migration and thus subject to the test of strict scrutiny; under this test, the law failed. Chief Justice warren e. burger and Justice byron r. white each concurred separately, following the equal protection rationale of Zobel v. Williams (1982) and concluding that the law's discrimination lacked a rational basis.

Justice sandra day o'connor, for the three dissenters, argued as she had in Zobel that there is no "free-floating right to migrate" and that the proper question was whether the law violated the privileges and immunities clause of Article IV. She answered this question in the negative. The law offered only a one-time preference to a relatively small number of applicants, who were treated the same as the vast majority of New Yorkers in seeking state jobs; the preference was not absolute, but added points to examination scores. Thus, the interest at stake could not be considered "fundamental" to interstate harmony. Addressing Justice Brennan's argument on its own terms, she said the same considerations showed that the discrimination was not a "penalty" on interstate travel.

The Brennan and O'Connor views each have a threshold test that requires some importance for the interest lost when a state prefers its own residents. Once past this threshold, however, Justice O'Connor would measure the law's validity against the privileges and immunities rhetoric of intermediate scrutiny rather than the rhetoric of strict scrutiny. Given that no Justice under eighty years of age joined Justice Brennan's opinion and that three members of the Soto-Lopez majority have retired from the Court, Justice O'Connor's view appears to be ascending. There is the embarrassment that the text of the privileges and immunities clause prohibits a state's discrimination, not against its own citizens, but against citizens of another state; however, the Court has confronted more serious textual embarrassments in the past, with only a trace of a blush.

Kenneth L. Karst
(1992)