Intellectual Laziness on the Supreme Court
In my column for Hoover's Defining Ideas this week, I argue that it’s time for the Supreme Court to scrap the irrational “rational basis test," which it most recently applied--to idiotic use--in Armour v. Indianapolis.
I explain the case in greater detail over at Defining Ideas, but the bottom line is this: The Supreme Court should never accept the open invitation to intellectual laziness and antisocial results that comes from adopting the rational basis test in any case that involves government regulation or taxation. There are all sorts of powerful and instructive private analogies that give clear guidance on how constitutional law cases should be decided, and these rules never give pride of place to some exaggerated concern with administrative costs.
Brown v. Board of Education was also an equal protection case: What might have happened if the Supreme Court had held that the high administrative costs of ending segregation meant that the Court should not intervene? The point here is not to pretend that Armour is as important as Brown. It isn’t. Rather the point is this: The Court should restore some semblance of true rationality to American constitutional law by junking the rational basis test that leads it to disregard every known principle of justice and efficiency.
Read more at Defining Ideas.
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Comments:
May '11
Re: Intellectual Laziness on the Supreme Court
Like democracy itself, the rational basis test is the worst possible system, except for all the others. Anything that gives judges more power to substitute their own prejudices for the democratic process sounds bad to me. So what is the alternative to rational basis?
Aug '10
Re: Intellectual Laziness on the Supreme Court
sarc/ I love it!
Indianapolis - "We've taken your money, unjustly; it costs too much for us to give it back - so we won't"
SCOTUS - "that sounds rational to us - so let it be written, so let it be done!"
/sarc off
Jan '11
Re: Intellectual Laziness on the Supreme Court
While I appreciate the legal need to distinguish between standards of review for various cases, the "basis tests" always remind me of similar artificial constructs in philosophy. That is, they were used as props and crutches to explain an immediate problem, but have since developed lives of their own.
In philosophy, Willard Quine made quite a career attacking such constructs. His signature work was called "Two Dogmas of Empiricism," in which Quine went after two philosophical constructs, namely, the supposed distinction between analytic and synthetic propositions, and reductionism. Quine showed, successfully I'd argue, that these were merely artificial distinctions that basically sounded good but fell apart when looked at closely.
Ever since, I've been wary of such artificial constructs, and the distinction between "rational basis," "strict scrutiny," and every shade in between give me the same heebie-jeebies. (Heebie-jeebies is a technical philosophical term, of course.) They sound good, but they fall apart upon review.
I'm not a lawyer, so I'm not familiar with the literature. Has any legal theorist come out and declared such tests to be "moonshine?"
Apr '12
Re: Intellectual Laziness on the Supreme Court
Larry: A rational basis test that actually reequired the government to be rational in the circumstances would be preferable to one that essentially means "anything goes." The government here was not truly rational, but was merely getting away with murder, as it did in Kelo. The constitution should mean something. Under the existing rational basis test it means nothing.
Feb '12
Re: Intellectual Laziness on the Supreme Court
The rational basis test has always bothered me because of the name. Courts don't strike down laws for lacking a basis that is rational; they strike down laws for lacking a basis that is legitimate. It seems to me that the typical traditional use was when legislators passed a law for the rational reason of helping special interest group X, but didn't want to admit that in public or in court. The court would listen the silly pretend reason and strike it down.
Maybe that could have been used to strike down the Indianapolis policy, the true policy reason being the city wanted to keep all the money it could, but a good rebuttal is that if that were the city's motivation it could just double-tax some neighborhood. What seems to me a stronger basis for attack is the idea that states must honor contracts. Weren't these assessments effectively a contract--- homeowner pays X, homeowner gets sewers? The state reneged on its lump-sum payment arrangement for payment for services.
May '10
Re: Intellectual Laziness on the Supreme Court
"Heightened scrutiny" is an artifact of what ConLaw profs will explain is "substantive due process". In other words, don't look at the inputs, look at the output to see if it is fair or not. Or whatever. Results-oriented judiciary, founded largely by William O Douglas starting around the time of Griswold.
What is interesting here is how timely Prof. Epstein's analysis is. Last Summer, they re-paved all the 25 to 30 year old patched-up streets in my suburban neighborhood (I could tell stories....), and the choices of paying the special assessment were adding to the mortgage, $4k in cash, etc. Because our mortgage has only about a year to go, I was wondering whether to pay the lump sum. Now? Fat chance- I will make payments, and pro-rate the amortization of remaining cost into the price whenever we sell the house.
Unintended consequences, no doubt. But I will surely not trust my local government to be fair about this. It was outrageous that the Indianapolis case even got to SCOTUS, and even more outrageous that Thomas concurred because of his obsession with the rational basis test.
Feb '11
Re: Intellectual Laziness on the Supreme Court
KC Mulville:
Ever since, I've been wary of such artificial constructs, and the distinction between "rational basis," "strict scrutiny," and every shade in between give me the same heebie-jeebies. (Heebie-jeebies is a technical philosophical term, of course.) They sound good, but they fall apart upon review.
I've never understood the attraction of the terminology. Why would we want judges to "strictly scrutinize" potential infringements of some rights and give a cursory glance to the infringement of others. Any rights we have are deserving of protection, regardless of how they stand in the hierarchy of rights, or they are not really rights. Judges should guard against any abuse of individual rights by the state.
May '11
Re: Intellectual Laziness on the Supreme Court
I would assume you are an originalist, and would therefore appreciate that the Constitution was never meant to limit the power of the states in any appreciable way. It was meant to limit the power of the federal government to interfere with the states.
In any event, keep in mind that federal judges are also part of the government, and their power is more dangerous than that of local politicians because they cannot be voted out of office.
Apr '12
Re: Intellectual Laziness on the Supreme Court
Larry; I agree with you that the constitution was originally targeted at the federal power, but don't forget the 14th amendment. That's part of the constitution, too. I'm not so sure that federal judges are more dangerous than local politicians. Local politicians are much more likely to be corrupt and self-interested. Voting the bastards out is prospective, and will not help the victims in the Kelo or Armour cases.