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: Just because the Court rightly exercises close scrutiny in cases that involve both fundamental rights and suspect classifications does not mean that it should throw in the towel whenever it is confronted by the blatant misuse of taxation powers by local governments. 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.
Richard Epstein on the “Intellectual Laziness” of the Rational Basis TestJune 13th, 2012
Of course what Richard doesn’t mention (but we all know is on his mind) is Footnote Four of Carolene Products, which relegates economic regulations to rational-basis-land, but elevates civil rights issues to heightened scrutiny. Richard would gladly do away with Footnote Four.