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Alito and "Rational Basis"

If the legislature is sane, the court should refrain!

7:00 AM, Nov 1, 2005 • By DAVID M. WAGNER
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But that does not dispose of the charge of vagueness. What ends are legitimate? In Lochner v. New York (1905)--always invoked as an avatar of judicial activism by its foes, and praised as principled pro-freedom jurisprudence by its growing ranks of friends--the Court used both ends of the test. The hours regulations for bakery employees at issue in that case might have been health laws, in which case they had a legitimate end or goal--but they were (the Court thought) not rationally related to that goal. Or they could have been labor laws: clearly they were rationally related to the regulation of labor--but, in those days, more than 30 years before the National Labor Relations Act, regulation of labor was not thought to be a legitimate state end.

So, is the "rational basis" highly deferential to the legislature, as advertised? The Lochner Court didn't think so, but supposedly the New Deal changed all that. From the early 1940s until recently, law students were taught that "rational basis" means that the statute is to be upheld, even if the justices disagree with it, as long as a rational legislature--that is, a legislature made up of a majority of members who do not require hospitalization for mental disease--could have enacted it. In one case, Railway Express Agency v. New York (1949), the Court even showed itself willing to supply the state with a rational basis where counsel had apparently failed to bring along an appropriate one, rather like snooty restaurants supplying ties for inadequately attired guests. As long as the legislature doesn't need a straight-waistcoat, its policy preference is to stand, not the Court's.

BUT STRANGE THINGS have been happening to the rational basis test. The New Deal consensus on its meaning may be breaking down. In some casebooks, Railway Express has gone from being a major case, to being a "notes and comments" curiosity, to vanishing altogether. More attention is paid to Cleburne v. Cleburne Living Center, a 1985 case in which the Court held that "rational basis" was the applicable test but that the legislative decision--denying a permit for construction of a home for the mentally handicapped--was irrational. And then came Romer v. Evans, the decision invalidating a state constitutional amendment that sought to make homosexuality an ineligible basis for civil-rights protections. If "sexual orientation" is a protected category for 14th Amendment purposes, the state law would have faced the supposedly rigorous "strict scrutiny" test. The Court did not hold this--but struck the amendment down anyway, using the supposedly deferential "rational basis" test. It found that the citizens of Colorado (who are, after all, the "legislators" of a state constitutional amendment) were in the grip of "animus," and so did not legislate rationally.

IN SHORT, a Lochner-type version of the rational basis test may be in the process of displacing the New Deal consensus on that test's meaning. But Judge Alito's use of the test in Casey cannot therefore be faulted. First, as an appeals court judge, he properly took guidance not from academic speculation over the direction of the Supreme Court, but from what that Court had actually said up to the time in question. More importantly, Judge Alito's Casey opinion shows him to be faithful to the judicial duty not to "legislate from the bench," an overused phrase which means simply that judges should go the long mile before substituting their views for those of the people's elected representatives.

This view of the role of judges was perhaps the New Deal's most bipartisan achievement. The departures from it during the heyday of the Warren Court produced friction among the liberal Justices appointed by FDR (notably between Douglas and Frankfurter), as well as controversy with a new generation of conservatives who saw the New Deal-type of rational basis test as key to preserving the democratic accountability of public decision-making. Conservatives felt odd, and still do, defending a New Deal doctrine (and being attacked for it from the left). But this particular New Deal doctrine is an established tradition with bipartisan support, and Judge Alito's Casey dissent show him standing squarely within it. Nothing could be more mainstream.

David Wagner teaches constitutional law at Regent University, and blogs at