During the debates over the Affordable Care Act, a common criticism of the challengers was that the commerce-clause based attack was really a liberty-based challenge in structural clothes. Legal positions, the argument went, which were ostensibly framed in terms of Congress’s abilities to regulate interstate commerce, or to tax and spend, were really efforts to enforce a libertarian vision of the Constitution.

I think this argument neglects an important attribute of the Roberts Court that was on fully display in NFIB, as well as other recent cases that focus on the importance of structural protections of the Constitution to protect individual liberty.  This isn’t just a conservative thing. Similar logic that underpins cases like Shelby County, and the Medicaid Expansion portion of NFIB, focusing on the importance of states protecting certain dignity and liberty interests of its people was utilized in Lawrence and Windsor (Randy Barnett alluded to this phenomenon in this post). And the common thread in all of these doctrines is Justice Kennedy. His interwoven views on federalism and individual liberty have reached results as wide-ranging as voting to strike down, on consecutive days, part of the Voting RIghts Act and the Defense of Marriage Act (the only Justice to do both).

I am working on an article about Justice Kennedy’s jurisprudence stretching from Casey to Romer to Lawrence to NFIB to Windsor. I argue that the consistent trend in these cases is (1) eschewing traditional notions of scrutiny (both in terms of suspect classes and fundamental rights), (2) merging of due process (conduct) and equal protection (status), and (3) looking to the states through a reverse-federalism lens, as bulwarks of freedom, to bolster federal constitutional rights. When viewed in this light, the importance of constitutional structure to Justice Kennedy, and by (unavoidable extension) on the Roberts Court becomes more clear.

The article is not quite ready yet to post to SSRN. In the interim, I will post the introduction that gives a good flavor of the article. It is still subject to change. I have omitted the footnotes to make it easier to read on the blog.

What if I were to tell you that over the last twenty years, there has been a subtle, but monumental evolution in the Supreme Court’s approach to the rational basis test. Sure, everyone knows about the so-called “rational basis with bite” that offers heightened review in a handful of equal protection cases, usually including Moreno, Cleburne, and Romer. That’s the conventional narrative. But what’s really going on is much deeper. Equal protection doctrine is no longer practically grounded in what have been deemed “suspect” or “quasi-suspect” classes. The Court stopped adopting new classes some time ago. Substantive due process doctrine now bears little relation to whether rights are labeled “fundamental” or not. When was the last time a new fundamental right was recognized? And, perhaps most perplexingly, counting states that confer certain rights to the people—a form of reverse federalism—is used as a one-way ratchet to ensure stronger protection of constitutionally protected liberties.

The evidence of this transformation isn’t only where you would expect it-—Romer, Lawrence, and Windsor. To grasp the changes to constitutional scrutiny, we also need to look at what are ostensibly unrelated cases like Kelo, Heller, Stop the Beach, and others. All of these cases reflect several trends: eschewing conventional norms of scrutiny, remaining vigilant for the government singling out certain people, and looking to federalism as a bulwark for liberty. And, unsurprisingly, all of the pivotal opinions are authored by one person—Justice Anthony M. Kennedy. Far from a “rudderless” jurist who cobbles together opinions to reach certain results, this “super-median” Justice has methodically effected a wholesale change in our approach to judicial review, far beyond the scope of gay rights.

And because either a faction of liberal, or conservative justices must join him, usually without concurring, to get to five votes, Kennedy is consistently able to obtain a consensus for broad positions—many of which can come back to haunt his compatriots. While several of Kennedy’s tendencies have been discussed in the literature—such as viewing Lawrence in terms of “liberty” over “privacy,” or his preference for protecting human dignity, or his strong belief in federalism —this article, written in light of Kennedy’s crowning achievement, United States v. Windsor, ties together these threads and more. In Kennedy’s jurisprudence over the last two decades, notions of equal protection, substantive due process, and federalism have merged together—sometimes subtly, sometimes brazenly—in a chimerical constitutional clause aimed at preserving individual liberty from the government.

This article offers a guided tour of the last three decades of constitutional law, with key stops illustrating how the rational basis test has been transformed across the corpus of the U.S. Reports. This article challenges the standard account, and also offers a countervailing narrative to the classical “rational basis plus” account. This article explains why what seems to be an inherent tension in Windsor—is it an equal protection case or a substantive due process case or a federalism case—is not a tension at all. It’s part of this evolution. Finally, this essay resolves a quandary that is inherent in the Romer, Lawrence, Windsor trilogy. Are these heightened scrutiny cases limited to gay rights? Or, will they apply to something more?

Part I describes the conventional account of the three tiers of scrutiny, which most would concede more closely resembles a continuum. I consider these cases with a pair of hindsight glasses, focusing on the portions of thee cases that have proved most enduring, and most cited in recent years. Lurking through cases that offered heightened scrutiny outside the normal tiered rubric was a lingering fear of the spirit Lochner, in this body Williamson v. Lee Optical, the apogee of judicial deference, and a steadfast exclusion of review for “economic and commercial matters.” This specter continues to haunt all applications of exacting scrutiny to this day.

Part II provides an alternate narrative to this jurisprudence, focusing on case law over the past two decades, mostly from the pen of Justice Kennedy. These cases, which span across the U.S. Reports, blend together doctrines of equal protection, substantive due process, and a unique version of reverse federalism, as a means to protect individual liberty from the government. The always-perspicacious and acerbic Justice Scalia, has engaged in a twenty-year game of cat and mouse, sparring with Kennedy in dissent over this exact dynamic in different contexts.

Part III reconsiders what is often known as the “rational basis plus” trilogy of Moreno, Cleburne, and Romer, and suggests a new relevant trilogy: Romer, Lawrence, and Windsor. Each typifies the three-pronged approach to judicial protection of individual liberty, and are in no ways dependent on equal protection, substantive due process, or federalism doctrines alone. With this new reality, I close by asking if the rational basis test, as we once knew it, is gone with the Windsor. Specifically, is Windsor a one-off, limited to gay rights, or instead, does it mark a new trend with how the Court continues to view individual liberty.

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Here is a further elaboration on what I call “Kennedy’s Constitutional Chimera.”

Justice Kennedy’s jurisprudence in these “liberty” cases consistently pivots across three legs.  First, traditional approaches to scrutiny are cast aside. It’s not enough to say that the Court applies rational-basis plus. First, the Court entirely disregards long-standing norms of “suspect classes,” “fundamental rights.” Instead of speaking in terms of rights and classifications, the Court speaks more broadly in terms of liberty. Second, rather than focusing on the traditional scrutiny-land approach of the means-ends fits—tailoring and state interests—the Court puts asides these concepts, and shines a magnifying lens on the effects of the law, and how it impacts individual freedom.  If the law crosses a threshold, no amount of tailoring can save it. The government is assigned a burden that it cannot meet. Third, turning aside long-standing notions of legislative discretion, the Court rejects traditional rational bases. “Moral disapproval” can no longer save a law.

The next move in this constitutional chimera rejects the Fourteenth Amendment’s bifurcation of freedom from government intervention. First, principles of equal protection and due process are forged together into a judicially-wielded sword to eliminate the singling out of certain disfavored groups, with laws that infringe on their individual dignity.  This merging eliminates the distinction between status (what was commonly covered by equal protection) and conduct (what was commonly covered by due process). Second, instead of guarding against discrimination against suspect classes, or violation of fundamental rights, this sword swings in protection of a person’s dignity. Understood in the context of Justice Kennedy’s jurisprudence, dignity can be understood as a hybrid concern of individual autonomy (through exercising liberty) from state control (through classifications). The “bare desire” to harm these freedoms triggers this constitutional guillotine to splice the law.

Finally, in perhaps the least-recognized head of this hydra, federalism is turned on its head, as the protections afforded by the states ratchet up the level of protection guaranteed by the federal constitution. Though these cases enforce protections of the federal constitution, the Court, looking a reverse-federalism lens, builds support for the protection of certain rights based on the conferral of dignity on individuals by the states. In other words, by counting the number of states that have afforded protections to individuals, the understanding of the federal constitutional guarantees is updated. This one-way ratchet looks to the states as bulwarks of freedom from federal discrimination. This reflects the view that the states are responsible for ensuring the liberty of its citizens against federal intervention.

These three pivots—burdens, dignity, and federalism—embody the new mode of judicial review that has predominated the most significant cases over the last decade.

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If you are interested in a draft, please drop me a line, and I can send it when it’s ready. 

Cross-Posted at Volokh.com