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Suspect Classification

SUSPECT CLASSIFICATION

Long before the term "suspect classification" gained currency, Justice harlan fiske stone captured the idea in his opinion for the Supreme Court in united states v. carolene products co. (1938). While insisting on rational basis as the appropriate standard of review for cases involving economic regulation, Stone suggested that "prejudice against discrete and insular minorities [that is, religious, or national, or racial minorities] may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." In modern idiom, to call a legislative classification "suspect" is to suggest the possibility that it resulted from prejudice against the group it burdens, a possibility that justifies strict judicial scrutiny to assure that it is necessary to achieve a compelling state interest. In practice, most laws subject to this exacting standard are held invalid.

Irony attends the origins of the expression. Justice hugo l. black, writing for a majority in Korematsu v. United States (1944), one of the japanese american cases, found no denial of equal protection in an executive order excluding American citizens of Japanese ancestry from the West Coast. Along the way to this extraordinary conclusion, however, he said: "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny." In Korematsu itself, the Court did no such thing; it paid the greatest deference to a "military" judgment that was chiefly political and steeped in racial prejudice. Yet Korematsu 's main doctrinal legacy was that racial classifications were suspect.

In one view, this two-stage analysis, first identifying a classification as suspect and then subjecting it to strict scrutiny, is a roundabout way of addressing the issue of illicit legislative motives. (See legislation; washington v. davis.) Strict scrutiny is required in order to allay the suspicion that a law was designed to disadvantage a minority that lacked effective power in the legislature. That suspicion is laid to rest only by a showing that the law is well designed to achieve a legitimate purpose that has real importance. In another view, a classification based on race should be subjected to strict scrutiny because the immutable characteristic of race lends itself so well to a system thought dominated by stereotype, which automatically consigns a person to a general category, often implying inferiority. This concern for stigmatic harm is part of the substantive core of the equal protection clause, the principle of equal citizenship; the concern retains vitality even in an era when members of racial minorities have become electoral majorities in many of our major cities.

A number of egalitarian decisions in the later years of the warren court suggested a wide range of classifications that were candidates for inclusion by the Supreme Court in the "suspect" category: alienage, sex, illegitimacy, age, indigency. In the event, none of these candidates was accepted fully. Some classifications disadvantaging aliens were held "suspect," but many were not. The Court did significantly heighten the standard of review for most cases involving claimed denials of sex discrimination and gave some "bite" to the rational basis standard in cases involving illegitimacy. On the whole, however, the Court's behavior since the late 1970s suggests a determination to limit expansion of the list of suspect classifications, and thus to limit the occasions for active judicial supervision of legislation.

Some racial classifications are adopted as remedies for past societal discrimination based on race. Such an affirmative action program presents neither of the principal dangers that have been said to require strict judicial scrutiny of racial classifications. There is less reason to suspect an illicit motive when a majoritarian body such as a legislature discriminates in favor of a historically disadvantaged minority, and the risk of stigmatic harm to a racial group is much reduced. Thus, varying majorities of the Supreme Court have consistently agreed that the appropriate standard of review for such remedial legislation, including racial quotas, is considerably less exacting than the strictest form of strict scrutiny.

The whole "suspect classifications" idea would seem to have outlived its usefulness. Surely the Supreme Court no longer needs the doctrine to justify its highest levels of intensity of judicial review. In race cases, for example, the Court needs no such locution in order to continue imposing on government a "heavy burden of justification" of laws imposing invidious racial discrimination. Abandonment of the rhetoric of suspect classifications would promote candor, by easing the way for open recognition of the sliding scale of standards of review now serving to cloak the Court's interest balancing. It would also remove a barrier, built into the very language of suspect "classifications," to doctrinal growth in the direction of affirmative governmental responsibility to alleviate those inequalities that prevent the realization of the principle of equal citizenship.

Kenneth L. Karst
(1986)

Bibliography

Brest, Paul A. 1976 The Supreme Court, 1975 Term—Foreword: In Defense of the Antidiscrimination Principle. Harvard Law Review 90:1–54.

Ely, John Hart 1980 Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press.

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