For the first (and last) time ever, the Solicitor General Poo Poos Lee Optical Rational Basis Review

March 26th, 2013

First, every warning flag 13 that warrants exacting scrutiny is present in this case. 14 And Petitioners’ defense of Proposition 8 requires the 15 Court to ignore those warning flags and instead apply 16 highly deferential Lee Optical rational basis review as 17 though Proposition 8 were on a par with the law of 18 treating opticians less favorably than optometrists, 19 when it really is the polar opposite of such a law.

I have been chatting with my friend Clark Neily, and considering coming up with a new phrase for Lee Optical Rational Basis Review. It is unfortunate that that the Cleburne/Romer rational review is slopped together with the Lee Optical Rational Basis Review. I don’t like the Rational Basis + Bite Formulation, because that suggests that Cleburne and Romer are something extra. Those should be the baseline for rational basis review. In my mind, Lee Optical rational basis review is a political question/abstention doctrine, where the courts just pretend to act like Judges. I will probably write something about this over the summer, called “The Supreme Courts Fourth Tier of Scrutiny” or something like that.

Update: Lee Optical is mentioned nowhere in the government’s brief. This line was impromptu. Odd, as Verrilli is usually so careful. This is not a point I think the government would ever want to make.

Update 2: I was wrong, Lee Optical is cited in the SG Brief.