This chapter examines the Supreme Court’s historically evolving interpretation of the Equal Protection Clause, including its recent embrace of the view – initially uttered by a solitary dissenter in an 1896 decision in the case of Plessy v. Ferguson – that “[o]ur Constitution is color-blind.” In equal protection cases, the Court has rarely claimed originalist support for its decisions, even when effecting sharp changes of course, as in its iconic decision in Brown v. Board of Education (1954). In a recurring pattern, the Court’s leading equal protection decisions have condemned forms of discrimination –– first on the basis of race, then sex, and then sexual orientation –– only when public opinion began to view them as unjustifiably bigoted. This chapter analyzes the Court’s recent decision to invalidate practices of affirmative action in higher education that prior decisions had permitted for more than forty years. It also surveys a branch of equal protection doctrine that strictly scrutinizes deprivations of rights that the Court deems “fundamental” under the Equal Protection Clause, centrally including voting rights. It explains continuities, but also revealing disparities, between the approaches to voting rights of the liberal Warren Court, on the one hand, and the conservative modern Court, on the other.

Appellate court opinions are often criticized for establishing difficult precedent as a result of imperfect reasoning.This chapter, inspired by Giambattista Vico, explores the role that prerational judgment, embodied in the sensus communis, plays in the authoring of what will become unintentionally difficult precedent, using Schuette v. BAMN (2014) and its relevant precedent as an example. In Schuette the Court ruled that a voter-approved constitutional amendment that removed the power to implement affirmative action plans was not an Equal Protection violation. The chapter argues that in the opinions that preceded Schuette, the Court was accustomed to the evils the majority could undertake to preserve white dominance and maintain the status quo. Those Courts could not have anticipated the extent to which the future Court would understand that dynamic as a problem of another time. Further, it demonstrates how critics of that precedent similarly fail to account for the role of sensus communis in those earlier cases (and in their own appraisal of them) through their insistence that those opinions should have anticipated the controversies and the shifts in language that accompanied them.

This chapter describes two areas of legal theory that consider when means-based adjustments to legal rules may not be desirable. Under one perspective, means-based adjustments designed for redistributive purposes should be reserved for the tax system alone, since introducing means-based adjustments to other legal rules would entail greater efficiency costs. A second literature considers the desirability of a legal system that is impartial, nondiscriminatory, and general in its application. Subjecting taxpayers to different legal rules based on means could also undermine these important criteria. This chapter considers how means-based adjustments to the tax compliance rules should be evaluated from each of these perspectives, and why they would be justified even in cases where means-based adjustments to other legal rules would not be.

This chapter explores the principal constitutional challenges to laws that regulate unhoused persons and public property. Municipal ordinances have been challenged on the grounds that they are unconstitutionally vague or overbroad, impose cruel and unusual punishments, violate the right to travel, or infringe the right to equality. This chapter discusses the successes and shortfalls of these challenges. Its concluding parts discuss how U.S. and Canadian courts have rejected a positive right to housing.

This chapter explores symmetry’s implications for equal protection jurisprudence. A stark political divide has emerged between two understandings of legal equality, particularly with respect to race: conservatives generally favor an “anti-classification” approach focused on ensuring government neutrality, while progressives typically favor an “anti-subordination” approach that allows affirmative governmental action to redress historical group disadvantages. Although the Supreme Court has increasingly aligned its jurisprudence with the anti-classification perspective, symmetry should encourage an approach that gives something to both sides. The Court might accomplish this goal in at least three ways: by returning to the focus on diversity reflected in its earlier decision in Regents of the University of California v. Bakke while giving this framework greater “bite”; by allowing majority groups to disadvantage themselves, so long as they are genuinely dominant at the relevant level of government; and by sometimes allowing selection of government criteria with a view to their demographic effects, so long as these criteria are themselves facially neutral.

This chapter touches upon the very large topic of how individual rights interact with the police power. In what sense and to what degree do rights contravene state and local exercises of the police power? It is a shibboleth that regulatory power is constrained by rights. But this chapter interrogates these issues in more depth and detail, by discussing how rights claims are framed in connection with the police power and how the government’s assertions of power are circumscribed by particular doctrines and arguments in courts. Further, the chapter considers how the debate over the nature and content of so-called positive rights implicates the police power questions, questions concerning authority and content.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

Given America’s history of racial oppression, addressing racial discrimination has been the Court’s most transformative engagement with democracy. The Reconstruction Amendments’ prohibition of racial discrimination explicitly legitimizes judicial advancement of racial equity in elections. Relying on this mandate during the Civil Rights era, the Court struck down explicitly discriminatory laws (and permitted robust congressional action) with little controversy. However, in recent decades the Court has been fiercely divided over the substance of racial equity. Conservatives have argued that racial equity requires only ensuring formal equality in terms of race. Progressives have argued for a substantive constitutional conception of racial equity that would permit laws and rulings that benefit disadvantaged minorities and afford them substantive political power. The chapter first observes the unity of this debate across applying Equal Protection Clause to districting, Section 2 of the Voting Rights Act, and the preclearance requirement of the Voting Rights Act. It then analogizes the struggle on the bench to Rawls’s and Nozick’s famous debate over the fair allocation of resources.

This case is the first tribal appellate court case included in any of the Feminist Judgments volumes. The case deals with equal protection and gender discrimination, with facts somewhat analogous to Michael M. v. Superior Court, 450 U.S. 464 (1981). Three male juvenile defendants were charged with second-degree sexual assault (a gender-neutral statute), whereas their purported female sex partners were not charged. The Supreme Court of the Winnebago Tribe of Nebraska concluded that gender discrimination is subject to strict scrutiny under Winnebago law, and that the government had a compelling interest in charging only the male juveniles.

Counters arguments that properly validated risk algorithms violate egalitarian, retributive or procedural norms when used in pretrial or post-conviction settings

Simpkins v. Grace Brethren Church of Delaware, Ohio involved a state constitutional challenge to Ohio’s law limiting damages for emotional harm, brought by a teenager who was raped by her pastor. The Ohio Supreme Court rejected her argument that the law as applied to minor sexual assault victims violated equal protection and the right to jury trial. The rewritten feminist opinion uses feminist scholarship demonstrating the disparate impact of damage caps on sexual assault victims to conclude that the law deprives minor sexual assault victims of such a substantial portion of their damages compared to other injury victims that it does violate equal protection and the right to jury trial. The accompanying commentary surveys tort reform damage cap laws and notes how feminist scholarship and the growing awareness of the institutional cover-up of sexual abuse can influence legislatures and courts to ameliorate the effect of these laws.

This chapter surveys the legal history of the term the "protection of the laws," from the writings of the early natural rights thinkers, the American Founders, and Blackstone to Andrew Jackson and antebellum state-level court cases. It argues that the concept of the "protection of the laws," including the "equal protection of the laws," was narrower thanmodern-day courts maintain: it was about the remedial and protective services supplied by the government and the laws aiming to protect individuals in the exercise of their rights against private interference and private violence.

The Introduction outlines the argument of the book and its methodology, distinguishing the more reliable "language of the law" originalism fromless reliable versions that rely too much on legislative history or antislavery constitutional thinkers. Using this methodology, the book will show that the key provisions of the Fourteenth Amendment's first section had well-established antebellum legal meanings that chart a satisfactory middle course between interpretations that rely on what people thought in 1868 and those that allow judges to pour into the text their own extratextual values.

If a right exists, bedrock principles of American law generally demand that the right be equally available to all. So unassailable is this tenet that the US Supreme Court etched the phrase, “Equal Justice Under Law,” on the front of the court building in the 1930s. A plaintiff who is black should have the same substantive law applied to their claim as a plaintiff who is white, with similar results for similar claims.1 And although concrete evidence of systematic, unequal judicial results is sometimes hard to uncover, it is widely acknowledged that in many contexts the law does not, in fact, operate with an even hand.2 The white plaintiff prevails where the black plaintiff fails. Can equality, as a principle of American law, become more than hortatory? How can the law be adjusted to operate more equally, and how can those adjustments be doctrinally justified and grounded? This chapter seeks to answer these questions in a particular legal context – the tort of public disclosure of private facts – and to draw lessons from those results for privacy tort reform and the constitutionalization of tort law more broadly.