People often get hung up on how judges judge. Richard Posner wrote an excellent book on this question titled “How Judges Think.” I find this topic fascinating. But a fundamentally more important question–a question that must precede the question of how judges think–is “When do Judges judge?” In other words, when do judges exercise their judgment and when do they let others (usually the legislative or executive branch) do the judging for them, and merely rubber stamp that other judgment.

This abstinence from judging is most pronounced when considering political questions. In these cases, the Court finds that a question is reserved to a separate branch of government, and the Court simply ignores the issue. This approach dates all the way back to Marbury, but we have seen it pop up in Luther v. Borden, Baker v. Carr, and elsewhere.

But, the Court does the exact same thing–decide not to judge–in many cases that are not political in nature. I often think of Lee Optical style rational basis review as equivalent to refusing to consider a nonjusticiable  political question. In these cases, the Court is not judging, but is simply leaving the determination of the law to the other branches. I often query whether it is even reasonable to call the rational basis a test at all–it is not a test, but rather an abstention doctrine. At best its a rubber step accompanied by the wave of a magic wand and the sprinkling of some legal talismanic incantations.

What are some of the reasons why rational basis test applies? Generally, when the Court determines that Judges lack the requisite area of expertise, and the elected branches are more suited to make these determinations.

Justice Breyer gave a similar rationale in McDonald:

Unlike the protections offered by many of these same Amendments, it does not involve matters as to which judges possess a comparative expertise, by virtue of their close familiarity with the justice system and its operation

I will assume for the time being that this is a valid rationale. My objection, however, is to question when courts decide to whip out the rational basis test. Courts have no problems wading into the muddied water of intricate antitrust cases, sophisticated patent cases, and some of the most pressing issues of the day, including racial integration, assisted suicide, sodomy, etc. Why do Courts have the expertise to handle these complicated issues, but not other issues awarded rational basis test? The answer, I think, is that the Courts do not like some rights, and are comfortable letting the elected branches handle them.

This is another lens through which I view the concept of equality of rights. Simply put, why are some rights different from other rights?