THE RATIONAL-BASIS TEST VIOLATES DUE PROCESS

Transcription

1 THE RATIONAL-BASIS TEST VIOLATES DUE PROCESS Andrew Ward * INTRODUCTION 2013 was a big year for civil rights. The Supreme Court reviewed affirmative action in higher education. 1 It required federal, but not state, recognition of same-sex marriage. 2 These are equalprotection cases, which ask how, under the Constitution, the government may treat its citizens. So it is a good time to reexamine * J.D. expected 2014, New York University School of Law. Thanks to Clark Neily, who wrote briefly about this topic in No Such Thing: Litigating Under the Rational Basis Test, 1 N.Y.U. J. L. & LIBERTY 898, (2005). He introduced me to the topic when I worked with him in the summer of 2012 as a legal intern at the Institute for Justice. Also, though this note was published while I was Senior Notes Editor of this journal, my predecessor approved it for publication. 1 See Fisher v. Univ. of Tex. at Austin, 133 S. Ct (2013). 2 See United States v. Windsor, 133 S. Ct (2013) (federal); Hollingsworth v. Perry, 133 S. Ct (2013) (state). 714

2 2014] RATIONAL BASIS, UNDUE PROCESS 715 tiered scrutiny, the familiar lens through which courts view this question. In theory, courts look at a law in one of three ways: with strict scrutiny, with intermediate scrutiny, or with rational-basis scrutiny. For affirmative action, courts are strict. Laws that racially discriminate must be narrowly tailored to achieve a compelling state interest. 3 In contrast, laws that discriminate by gender, for example, get intermediate scrutiny. They must be substantially related to an important state interest. 4 State prohibitions on same-sex marriage might be judged under this standard. 5 Or they may, along with routine matters of commercial, tax and like regulation, be judged under the rational-basis test. 6 Under this lowest standard, laws need only be rationally related to a legitimate government interest. 7 This paper is about the rational-basis test, or more specifically, it is about one little-known aspect of the rational-basis test. The test demands something usually prohibited. It demands biased judges. That is because, in comparison with strict and intermediate scrutiny, the rational-basis test changes the rules. Normally, of course, we have an adversarial system: each party presents its best case and then judges, disinterested and dispassionate, decide. But when the rational-basis test asks for a rational relationship to a legitimate government interest, the relationship and the interest may be other than what the government argued. Judges, on their own, not only may but must decide whether there is any reason the government 3 Fisher, 133 S. Ct. at See Craig v. Boren, 429 U.S. 190, 197 (1976) (establishing intermediate scrutiny). See also Mario L. Barnes & Erwin Chemerinsky, The Once and Future Equal Protection Doctrine?, 43 CONN. L. REV. 1059, 1079 (2011) (elaborating on intermediate scrutiny). 5 Compare Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012), aff d, 133 S. Ct (2013) (sexual orientation is a quasi-suspect class) with Massachusetts v. U.S. Dep t of Health and Human Servs., 682 F.3d 1, 9 (1st Cir. 2012) (it s not). When Windsor came before the Supreme Court, Justice Kennedy did not decide what level of scrutiny applies. 133 S. Ct Mass. v. H.H.S., 682 F.3d at 9. 7 U.S. Dep t of Agric. v. Moreno, 413 U.S. 528, 533 (1973).

3 716 New York University Journal of Law & Liberty [Vol. 8:714 wins, even if the government did not argue that reason. And that is troubling. It contradicts some of the fundamental ideas of Due Process. It is not technically unconstitutional constitutionality is what the Supreme Court says it is but it is troubling. And it matters for three reasons. First, it matters in itself because of procedural integrity. We should not lightly set aside an idea that we value so heavily elsewhere. Second, it matters because of economic liberty. We all have a right to work in a chosen profession free of undue governmental interference. 8 When small businesses and entrepreneurs challenge burdensome laws, those challenges are often under the rationalbasis test. 9 When these laws are good, the government can easily justify them. But when they are the product of interest-group pressure, litigants have a hard enough time as it is. A sole proprietor should not have to go up against the judge too. Traditionally this is an area that concerns conservatives, but Cass Sunstein has also argued that the rational-basis test should be strengthened as a bulwark against factionalism. 10 Eliminating judicial bias would mean judges could stop defending laws that were passed because A convinced a legislature to give him B s money. It would be a small step toward economic liberty that would do nothing to undercut the government s ability to sustain necessary laws. Finally, it matters because of discrimination. Any modification of the rational-basis test is not a mere slippery slope back to the laissez-faire days of Lochner, when the Court struck down maximumhour laws for interfering with a constitutionally guaranteed free- 8 New State Ice Co. v. Liebmann, 285 U.S. 262, 278 (1932). 9 Orin S. Kerr, A Theory of Law, 16 GREEN BAG 2d 111 (2012). 10 Cass Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, (1985).

4 2014] RATIONAL BASIS, UNDUE PROCESS 717 dom of contract. 11 There will always be groups that deserve heightened scrutiny but do not get it, as the gay-rights movement has again shown. Those groups already contend with animus from the public and from legislatures. Judges should not be bound to oppose them too. This bias requirement is cited infrequently. The purpose of this paper is to identify it now, and demonstrate its flaws, before it spreads further. Admittedly the thesis is simple, but as no other writing has thoroughly examined the issue, this paper will attempt to do so here. This note proceeds in two parts. In Part One, I give a history of the rational-basis test and show that it requires judicial bias. In Part Two, I explain just why it is that a neutral judge is important. I. THE HISTORY OF THE RATIONAL-BASIS TEST In 1993, Justice Thomas gave the canonical version of the modern rational-basis test (and it really is worth reading carefully, because understanding the level of deference is crucial): Whether embodied in the Fourteenth Amendment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Where there are plausible reasons for Congress' action, our inquiry is at an end. This standard of review is a paradigm of judicial restraint. The Constitution 11 See Brianne J. Gorod, Case Note, Does Lochner Live?: The Disturbing Implications of Craigmiles v. Giles, 21 YALE L. & POL Y REV. 537 (2003).

5 718 New York University Journal of Law & Liberty [Vol. 8:714 presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. On rational-basis review, a classification in a statute... comes to us bearing a strong presumption of validity, and those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it. Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. Thus, the absence of legislative facts explaining the distinction on the record has no significance in rational-basis analysis. In other words, a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. 12 The origins of the rational-basis test are actually much older. In some sense it has existed since at least It did not become prominent, however, until the general expansion of federal power in the New Deal F.C.C. v. Beach Commc ns, Inc., 508 U.S. 307, (1993) (citations omitted) (internal quotation marks omitted). 13 See Clark Neily, No Such Thing: Litigating Under the Rational Basis Test, 1 N.Y.U. J. L. & LIBERTY 898, 898 (2005) (citing Munn v. Illinois, 94 U.S. 113, 132 (1877) ( If no state of circumstances could exist to justify such a statute, then we may declare this one void, because is excess of the legislative power of the State. But if it could, we must presume it did. )). 14 Id.

6 2014] RATIONAL BASIS, UNDUE PROCESS 719 Then in 1938, Carolene Products suggested two kinds of judicial review and thus began the tiered scrutiny we know today. 15 It did the great service of establishing heightened scrutiny and the great harm of ensuring economic liberty was a second-class right. The question was whether Congress could ban Milnut skim milk mixed with coconut oil. It could. That was mere commercial regulation, which needed only a rational basis, in this case public health. 16 The ban was actually utterly unprincipled special interest legislation, and the immediate consequence was to expropriate the property of a lawful and beneficial industry; to deprive working and poor people of a healthful, nutritious, and low-cost food; and to impair the health of the nation s children by encouraging the use as baby food of a sweetened condensed milk product that was 42 percent sugar. 17 Meanwhile, laws dealing with specific prohibitions in the Bill of Rights, or restricting political processes, or discriminating against minorities might have a narrower presumption of constitutionality. 18 Thus heightened scrutiny was spun off: some laws would be seriously reviewed, and the rest would get the rational-basis test, under which interest group politics is free from the stumbling block of the... courts. 19 For many decades, 1955 s Lee Optical, 20 was the most familiar example of the rational-basis test. 21 It is a good case for showing how deferential the test is, not just in words, but also in practice. An Oklahoma statute prohibited, among other things, anyone other 15 United States v. Carolene Prods. Co., 304 U.S 144, 152 n.4 (1938). 16 Id. at Geoffrey Miller, The True Story of Carolene Products, 1987 SUP. CT. REV. 397, Carolene Products, 304 U.S at 152 n Miller, supra note 18, at Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955). 21 Cass Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689, 1713 (1984).

7 720 New York University Journal of Law & Liberty [Vol. 8:714 than optometrists and ophthalmologists from framing lenses or from replacing lenses without a prescription. 22 If a person broke only the rim of his glasses, he could not just go to a store to have the lenses put in new a frame. If just the lenses broke, he could not get the exact same lenses remade. Nor could he have the lenses taken out of old frames and put into new frames. He would have to get a prescription first. On the actual facts, these rules were ridiculous: framing lenses did not require optometric or ophthalmological training. 23 Even if it did, prescriptions almost never contained directions on fit, 24 and an imperfect fit was not harmful anyway. 25 As for replacing lenses, that too took no optometric or ophthalmological training. Indeed, when ophthalmologists wanted lenses measured, a clerk in the office measured with the same machine independent lensmakers used. 26 Finally, the law, emphasizing its own needlessness, exempted makers of ready-to-wear glasses, which had all the same purported risks of other glasses, but without the benefit of an initial examination. 27 The real explanation was not public health, but protectionism. 28 Optometrists and ophthalmologists sold about two-thirds of all glasses, and the law further directed at them a sizeable amount of trade. 29 Cass Sunstein has written that there is a plausible argument that... a naked preference was indeed taking place. 30 The three district judges, ruling unanimously against that part of the law, were more direct: The obvious result of this legislation is to 22 Lee Optical of Okla. v. Williamson, 120 F. Supp. 128, 135 (W.D. Okla. 1954), rev d sub nom. Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955). 23 Id. 24 Id. 25 Id. at Id. at Id. at See Neily, supra note 14, at 898 (2005). 29 Lee Optical, 120 F. Supp. at 135 n Sunstein, supra note 22, at 1713 (1984).

8 2014] RATIONAL BASIS, UNDUE PROCESS 721 appropriate a property right of one class to follow a legitimate calling or occupation and to give it to another class not shown to be more competent in the public interest. Indeed, the evidence shows that it would be inimical to the public interest. 31 But the Supreme Court unanimously reversed. Of course the government interest, public health, was legitimate. As for a rational relationship, despite the district court s conclusions, it was enough that without a prescription an error, however unlikely, might theoretically bring about improper lenses and that the legislature could have thought this justified regulation. 32 A. THE RATIONAL-BASIS TEST REQUIRES JUDICIAL BIAS Lee Optical is important not just as an introduction but also because it emphasizes just how easy it is for state action to pass the rational-basis test. That is important, because it gives substance to what is next: the rational-basis test s command that judges take sides. Were judges commanded to help the state and were that aid worthless, there would still in principle be a conflict with Due Process. But it would be less meaningful. As is however, most anything is enough to uphold a law under the rational-basis test. That means a judge on the government s side is a powerful ally. Judges are smart people. It is easy to think of something. And so the early rational-basis test made sure courts were no longer stumbling blocks on the path of special interests. 33 The rule of judicial bias means they must blaze the trail. The rational-basis test s requirement that the judge help the government might follow from the basic description of the test. Plaintiffs have the burden to negative every conceivable basis Lee Optical, 120 F. Supp. at (Murrah, J., dissenting in part). 32 Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, (1955). 33 Geoffrey Miller, The True Story of Carolene Products, 1987 SUP. CT. REV. 397, F.C.C. v. Beach Commc ns, Inc., 508 U.S. 307, 307 (1993) (citations omitted).

9 722 New York University Journal of Law & Liberty [Vol. 8:714 Normally those bases would come from the state s attorney. But nothing says they cannot be from the judge. That seems strange in light of everyday ideas of Due Process. The test, however, leaves open the possibility. The first actual announcement that the rational-basis test requires judicial bias came in Bruinooge v. United States was an otherwise unremarkable case before the U.S. Court of Claims. 35 The tax code excluded combat pay from gross income for enlisted personnel and warrant officers, but limited commissioned officers exclusions to $500 a month. 36 A former captain sued, arguing that this discrepancy violated Due Process. 37 Of course, under the rationalbasis test, he lost. 38 Congress could have meant to reduce taxes on service members who on average earned less, or it could have been trying to offset the various privileges conferred to officers. 39 What is interesting is this statement: Yet, because our analysis requires that we try to divine what Congress left unstated, we resort to our own talents and those of counsel to discern what legitimate purpose Congress assigned to this statute, and then to test whether the less favorable treatment given commissioned officers bears a reasonable relationship to that purpose. While we rely on our own judgment in seeking out a legislative purpose, we are cautious lest we inadvertently evaluate the statute's effectiveness or the quality of its drafting. 40 The court cited no authority. Then in 1980, apparently independently, the Third Circuit reached the same conclusion: The court may even hypothesize the motivations of the state legislature to find a legitimate objective 35 Bruinooge v. United States, 550 F.2d 624 (Ct. Cl. 1977). 36 Id. at Id. at Id. 39 Id. at Id. at 627 (emphasis added).

10 2014] RATIONAL BASIS, UNDUE PROCESS 723 promoted by the provision under attack. 41 Later that year, the Ninth Circuit quoted this in a footnote. 42 The Second Circuit joined in in 1983 when it quoted the our own talents language from the Court of Claims and cited no further authority. 43 Then in 1988 s Kadrmas v. Dickinson Public Schools, Justice O Connor wrote it for the Supreme Court: we are not bound by explanations of the statute s rationality that may be offered by litigants or other courts. 44 Over the next twenty-five years, this proposition was repeated in at least four more circuits. The Eight Circuit quoted Kadrmas in In 2001, the First Circuit wrote that [e]ven if [the government s] stated justification... is insufficient to uphold the rationality of the legislation, this Court is obligated to seek out other conceivable reasons for validating it. 46 Interestingly, the First Circuit cited Beach (the case block-quoted earlier to introduce the rationalbasis test), not Kadrmas itself, thus suggesting that the hypothesizing follows directly from the idea of negativ[ing] every conceivable basis. In 2004, the Tenth Circuit quoted this seek out language from the First. 47 And in 2013, the Fifth Circuit wrote without 41 Malmed v. Thornburgh, 621 F.2d 565, 569 (3d Cir. 1980) (citing Weinberger v. Salfi, 422 U.S. 749, 780 (1975); Lee Optical, 348 U.S. at ; Trafelet v. Thompson, 594 F.2d 623, 626 (7th Cir. 1979). None of the cited cases, however, stands for the court going beyond reasons proposed by the state s attorney. 42 Lamb v. Scripps Coll., 627 F.2d 1015, 1021 n.9 (9th Cir. 1980). 43 Burke Mountain Acad., Inc. v. United States, 715 F.2d 779, 783 (2d Cir. 1983) (quoting First Nat l Bank of Or. v. United States, 571 F.2d 21, 25 (Ct. Cl. 1978) (quoting Bruinooge, 550 F.2d at 627)). 44 Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463 (1988). 45 Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d 237, 240 (8th Cir. 1994) (quoting Kadrmas, 487 U.S. at 463). 46 Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 146 (1st Cir. 2001) (citing F.C.C. v. Beach Commc ns, Inc., 508 U.S. 307, 315 (1993)). 47 Powers v. Harris, 379 F.3d 1208, 1217 (10th Cir. 2004) (quoting Starlight Sugar, 253 F.3d at 146).

11 724 New York University Journal of Law & Liberty [Vol. 8:714 citation that as the defendants offered no rational basis, the court was required to try to suppose one. 48 The final example comes from 2008, when the requirement was repeated in the Supreme Court. Justice Stevens, dissenting, wrote that the lower court could have dismissed the claim if it discerned any reasonably conceivable state of facts that could prove a rational basis for the [State s actions], even one not put forth by the State. 49 He too cited Beach, not Kadrmas. Again, the Supreme Court has said that the rational-basis test requires judges to consider all possible reasons to uphold a state action, not just those reasons argued by the state. The Supreme Court s word is sufficient, but at least seven circuits have explicitly said so too. This requirement is infrequently cited, but it is there. It is worth identifying now, and cabining now, before it becomes more popular. Under the rational-basis test, if the state, but only the state, is incapable of making its case, judges must help it do so. This is not and would not be allowed in any other setting, and it should not be allowed here. B. DISCLAIMED BASES In fact, the rational-basis test may go even further. It is concerned with any justifications, not just those advanced by the state. Perhaps a judge could even uphold a law on a ground the state actively disclaimed. Judge Friot thought it doubtful, but perhaps arguable, that even where grounds which might justify statutory restrictions have been withdrawn from the court's consideration, those grounds could still be used by a court to find a statute constitutional under the rational basis test St. Joseph Abbey v. Castille, 712 F.3d 215, 227 (5th Cir. 2013). 49 Engquist v. Or. Dep t of Agric., 553 U.S. 591, 612 n.2 (2008) (Stevens, J., dissenting) (quoting Beach, 508 U.S. at 315). 50 Powers v. Harris, No. CIV F, 2002 WL (W.D. Okla. Dec. 12, 2002), aff d, 379 F.3d 1208 (10th Cir. 2004).

12 2014] RATIONAL BASIS, UNDUE PROCESS 725 Justice Stevens did not think so, but he wrote in a footnote in a dissent. 51 The possibility has never been properly ruled out. As odd as this notion may seem, it does follow from the test. If a court can rule on a ground the state did not argue a ground normally considered abandoned perhaps it does not matter whether the state abandoned the ground explicitly. A federal judge has actually evaluated the merits of statedisclaimed arguments and in an important case too. 52 Again, the Supreme Court recently decided the constitutionality of part of the Defense of Marriage Act, the law prohibiting federal recognition of same-sex marriage. 53 Although the Supreme Court granted certiorari in a different case, consider the major case striking down DOMA in the First Circuit. 54 The district judge s analysis, under the rational-basis test, had a surprising twist. After paraphrasing the hypothesize the motivations language from the Third Circuit (via the Ninth), Judge Tauro listed the four goals of DOMA from its House Report, 55 and then added that For purposes of this litigation, the government has disavowed Congress's stated justifications for the statute.... But the fact that the government has distanced itself from Congress' previously asserted reasons for DOMA does not render them utterly irrelevant to the equal protection analysis. 56 Judge Tauro then spent six paragraphs close to two full reporter pages explaining why these reasons were not rational bases for DOMA. 57 A federal judge felt himself obligated to evaluate bases 51 Engquist, 553 U.S. 591 at 612 n.2 (Stevens, J., dissenting). 52 Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, (D. Mass. 2010), aff d sub nom. Massachusetts v. U.S. Dep t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012). 53 See United States v. Windsor, 133 S. Ct (2013), aff g Windsor v. United States, 699 F.3d 169 (2d Cir. 2012). 54 Gill, 699 F. Supp. 2d at Id. at Id. 57 Id. at

13 726 New York University Journal of Law & Liberty [Vol. 8:714 not even that the government did not argue, but that the government withdrew. Until the Supreme Court clearly says otherwise, this may well be the logical end of the rational-basis test a judge so on the government s side that the government cannot itself concede an argument. C. RATIONAL-BASIS WITH TEETH There is a caveat. The most arrogant legal scholar would not claim that all [rational-basis] cases appl[y] a uniform or consistent test under equal protection principles. 58 Between 1984 and 2004, for example, the Supreme Court did strike down state actions in about ten percent of its rational-basis cases. 59 Several of these cases used a standard now called rational basis with teeth or bite. 60 Take, for example, City of Cleburne, Texas v. Cleburne Living Center. 61 Cleburne denied a permit for a group home for the mentally retarded. The Fifth Circuit found the denial unconstitutional, holding that acts discriminating against the retarded should be evaluated under intermediate scrutiny. 62 The Supreme Court agreed that the denial was a violation of Equal Protection, but it held so under the rational-basis test ostensibly. 63 But actually, as Justice Marshall put it, the rational basis test invoked [was] surely not the rational-basis test of Williamson v. Lee Optical. 64 For example, Justice White concluded that the record does not reveal any rational basis for believing that the... home would pose any special threat to the city s legitimate interests. 65 But the test is whether there is any 58 U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 176 n.10 (1980). 59 Suzanne Goldberg, Equality Without Tiers, 77 S. CAL. L. REV. 481, 495 (2004). 60 See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 696 (4th ed. 2011). 61 City of Cleburne, Tex., v. Cleburne Living Ctr., 473 U.S. 432 (1985). 62 Id. at Id. at 435, Id. at 458 (Marshall, J., concurring in part and dissenting in part). 65 Id. at 448.

14 2014] RATIONAL BASIS, UNDUE PROCESS 727 reasonably conceivable state of facts that could provide a rational basis for the classification, not what is merely in the record. 66 Further, the home was to be next to a middle school, and the state argued the students there might harass the home s occupants. Justice White called this a vague, undifferentiated fear[]. 67 But it is still reasonably conceivable. Despite the Court s refusal to acknowledge that something more than minimum rationality review [was] at work, 68 Cleburne has since become a standard rational-basis-with-teeth case. Not all rational-basis cases will use every aspect of the rationalbasis test. Judges are usually required to evaluate all the justifications they can think up, not just those put forward by the state, but the Supreme Court did not in Cleburne. Nonetheless, economic regulations are still judged under the traditional test. Under that, judicial bias is required. Nor are all laws discriminating against unpopular groups subject to teeth. DOMA was not in Massachusetts when Judge Tauro evaluated bases the state had actively disclaimed. Most of the time, the rational-basis test sets a very low bar, and then requires judges to help the state get over it. That is judicial bias, to which we turn now. II. THE IMPORTANCE OF NEUTRAL JUDGES A. BIASED JUDGES AND DUE PROCESS OF LAW Charles Gardner Geyh associates [j]udicial impartiality with puppies and pie : no decent soul would denigrate [it]. 69 It is, of course, one of the fundamental tenets of Due Process. 70 By obligat- 66 FCC v. Beach Commc ns, Inc., 508 U.S. 307, 313 (1993) 67 Cleburne, 473 U.S. at Id. at 459 (Marshall, J., concurring in part and dissenting in part). 69 Charles Gardner Geyh, The Dimensions of Judicial Impartiality, 65 FLA. L. REV. 493, 494 (2013). 70 See Tumey v. Ohio, 273 U.S. 510, 535 (1927) ( [H]e had the right to have an impartial judge ).

15 728 New York University Journal of Law & Liberty [Vol. 8:714 ing judges to conceive, on their own, all possible defenses of a state action, the rational-basis test violates that tenet. This obligation is a one-way street. Judges are not bound to help plaintiffs attack the grounds proffered by the state. Of course not that would violate Due Process. Thus the rational-basis test makes state s attorneys out of judges. Yet, [a] situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process of law. 71 Take Professor Geyh s third category of bias: judges who have political interests in case outcomes. 72 It can seem very much like the rational-basis test. Imagine a judge who never met a regulation she did not like. Every time an economic regulation is challenged before her, her political interests take over, and she decides to start looking for reasons to sustain the regulation, reasons the state s attorney never argued. This, surely, is classic unacceptable bias. If the rational-basis test demands the same behavior, there is no meaningful difference. If it is improper for a homophobic judge to seek reasons to ban gay marriage because of his homophobia, then it is also improper if he seeks reasons under precedent. Precision here is important. At common law there was an almost ironclad presumption of impartiality, subject to the lone exception for cases in which [judges] had an economic interest in the outcome. 73 It is not that the rational-basis test is akin merely to these hypothetical judges politics. Politics alone, whether actually biasing or not, would not disqualify judges at common law. Rather it 71 Id. at 533. Perhaps in some sense, the rational-basis test s requirement that a judge seek justifications for state action is not bias, because the judge is following the law. It is possible formally - that anything under the rule of law cannot possibly be bias. But if a test makes judges act exactly as if they were biased, then there is a problem no matter what it is called, and bias is a logical label. 72 Geyh, supra note 70, at Id. at 516.

16 2014] RATIONAL BASIS, UNDUE PROCESS 729 is that judges who did what the rational-basis test requires would, under any other circumstances, be considered biased. Supreme Court cases disqualifying judges as partial are rare. 74 Obviously, there has never been a case holding a judge cannot make arguments for only one party. There has not needed to be. What the Supreme Court has held is that significantly less bias is enough to violate Due Process. The Court s first major judicial-bias case was Tumey v. Ohio. 75 Amid Prohibition, Tumey unlawfully possessed liquor in a town small enough that he was tried by the mayor without a jury. 76 He was fined $ Under town ordinances, Prohibition prosecutions were paid for by Prohibition fines. 78 Thus the only way the mayor would be paid for judging was if he judged guilty. 79 Mayor Pugh made all of $12 80 $157 in 2012 money. 81 Though Tumey was clearly guilty, and though he received only the minimum fine, the Supreme Court reversed his conviction: There are doubtless mayors who would not allow such a consideration as $12 costs in each case to affect their judgment in it, but the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure 74 See Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009); Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813 (1986); Taylor v. Hayes, 418 U.S. 488 (1974); Mayberry v. Pennsylvania, 400 U.S. 455 (1971); In re Murchison, 349 U.S. 133 (1955); Tumey v. Ohio, 273 U.S. 510, 523 (1927). 75 Tumey, 273 U.S. at Id. at Id. at Id. at Id. at Id. at THE INFLATION CALCULATOR, (last visited Oct. 6, 2013).

17 730 New York University Journal of Law & Liberty [Vol. 8:714 which would offer a possible temptation to the average man as a judge... not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law. 82 Presumably judges would be less motivated to pick sides by $157 than by the Supreme Court telling them to do so. In 2009, the Court heard Caperton v. A.T. Massey Coal, another major bias case. 83 Massey was about to face a major appeal against Caperton in the West Virginia Supreme Court, and so Massey s president spent $3,000,000 supporting a challenger over an incumbent justice on the court. 84 The challenger won, and the $3,000,000 was more than everyone else spent on him put together. 85 Caperton moved to disqualify the new justice, but the justice denied the motion. 86 The court ruled for Massey with the new justice in the majority. 87 The Supreme Court reversed because the probability of actual bias on the part of the judge... [was] too high to be constitutionally tolerable. 88 That probability might have been 0.5, or it might have been Whatever it was, it could not have been more than 1, the probability of bias under the rational-basis test. If the mere possibility that judges might give one side something affronts Due Process, then so does a requirement that judges must give one side everything. And the rational-basis test does not just violate Due Process. It likewise violates the ABA s Model Code of Judicial Conduct, the 82 Tumey, 273 U.S. at Caperton v. A.T. Massey Coal, Co., Inc., 556 U.S. 868 (2009). 84 Id. at Id. 86 Id. at Id. at Id. at 872 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

18 2014] RATIONAL BASIS, UNDUE PROCESS 731 source of nearly every state code of judicial conduct, 89 which requires disqualification when the judge s impartiality might reasonably be questioned including when the judge has a personal bias or prejudice concerning a party. 90 If there is only one party, the state, for which the judge always supplies arguments, that would usually function as a personal bias. It could at least be reasonably questioned as such. Beyond the U.S., the behavior the rational-basis test requires would not do well in the U.N. either. 91 B. BIASED JUDGES AND THE ADVERSARY SYSTEM Similarly, the rational-basis test could also be recast as conflicting with the adversarial system: The adversary system relies on a neutral and passive decision maker to adjudicate disputes that have been aired by the adversaries in a contested proceeding. He is expected to refrain from making any judgments until the conclusion of the contest.... Adversary theory suggests that if the decision maker strays from the passive role he risks prematurely committing himself to one version of the facts and failing to appreciate the value of all the evidence. Adversary theory further suggests that neutrality and passivity are essential not only to ensure an evenhanded con- 89 Geyh, supra note 70, at 12 (quoting Leslie W. Abramson, Appearance of Impropriety: Deciding When a Judge's Impartiality Might Reasonably Be Questioned, 14 GEO. J. LEGAL ETHICS 55, 55 (2000)). 90 MODEL CODE OF JUDICIAL CONDUCT Rule 2.11(A)(1) (2007). 91 U.N. Cong. on the Prevention of Crime and Treatment of Offenders, U.N Basic Principles on the Independence of the Judiciary, 7th Sess., Aug. 26-Sep. 6, 1985, available at independence_judiciary_english.pdf ( The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. ).

19 732 New York University Journal of Law & Liberty [Vol. 8:714 sideration of each case, but also to convince society that the judicial system is trustworthy. 92 Parties too are more apt to accept adverse outcomes in litigation if they feel that they were subject to a... judge they regarded as impartial. 93 Although perhaps when judges are commanded to help the state make its case, the process is still adversarial two adversaries against one. The adversarial system is not just about the clash of two private parties. It is integral for criminal trials too. 94 There the state s power is immense. It may fine, it may incarcerate, and it may kill. Thus a neutral, impartial, calm, noncontentious umpire enforces the rules of the adversary game. 95 But the consequences in civil constitutional litigation, though less dire than death, can be far more serious than some criminal penalties. A business forced to close under special-interest legislation is a worse outcome than a small fine. Denial of federal benefits to a man who happens to love men is worse than a few weeks probation. And yet what is commonplace under the rational-basis test would be absurd in a criminal trial. A judge who announced that, now that she has heard the prosecution s case, there are a few weak spots she would like to help with, would probably be sanctioned and maybe even impeached. The same goes for a heightened-scrutiny case. The government should be subject to the adversarial system under the rational-basis test too. Admittedly, there are alternatives. Civil-law systems are inquisitorial. No respectable country, however, allows judges to be oneway inquisitorial, actively searching out material that aids one side 92 Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 OHIO ST. L.J. 713, (1983) (footnotes omitted). 93 Geyh, supra note 70, at 12 (quoting TOM TYLER ET. AL., SOCIAL JUSTICE IN A DIVERSE SOCIETY (1997)); Tom R. Tyler, The Role of Perceived Injustice in Defendants Evaluation of Their Courtroom Experience, 18 L. & SOC. REV. 51, (1984)). 94 See, e.g., Herring v. New York, 422 U.S. 853 (1975). 95 Marvin Frankel, The Adversary Judge, 54 TEX. L. REV. 465, 468 (1976).

20 2014] RATIONAL BASIS, UNDUE PROCESS 733 while remaining neutral, impartial, and calm toward the other. It is a contradiction, and it is hardly inquisitorial. Concededly, the rational-basis test s bias requirement is a step toward civil law, and, concededly, European courts are not terribly unjust. It does not follow, however, that the step is not unjust, because there is no reason to suppose a linear continuum. Even advocates for an inquisitorial system should recognize that halfway is worse than nothing at all. Besides, there is a good reason to prefer our adversarial system. Two eyes are better than one. When judges conceive of rational bases justifying state action, they could be wrong. A rational relationship to a legitimate state interest might actually not be rationally related, and the interest might not be legitimate. A skilled advocate might convince a judge that the hypothetical ground fails to sustain the action. Maybe painstaking research could show that the relationship is so attenuated as to be irrational. Maybe a subtle legal argument could establish the state interest as illegitimate. That takes time though. Against the state, the challenger has briefs and reply briefs and oral arguments. Against judges, at best there is a supplemental brief, more likely there are a few minutes at oral arguments, and at worst there is no chance to respond at all. Judges, like everyone else, should see if their ideas withstand scrutiny. That is why there is, often, peer-review in academia. Arguments are sounder when someone else tests them. The bias requirement is in itself a challenge to the adversarial system. Maybe the bias does not stop there. However hard judges try to be neutral and they try very hard it seems possible that, like a jury under a limiting instruction, a judge instructed to help the state in one way might subconsciously incline toward helping it in other ways See Neily, supra note 14, at 908 (2005) ( Those of a skeptical mindset might even doubt whether the judges can cabin their role so neatly. After all, having been told by the Supreme Court that they are required to help the government in one regard,

21 734 New York University Journal of Law & Liberty [Vol. 8:714 C. SUA SPONTE RULINGS [C]ourts are generally limited to addressing the claims and arguments advanced by the parties. Courts do not usually raise claims or arguments on their own. 97 But sometimes they do act sua sponte without offending Due Process. Most famously, federal courts must independently raise issues of subject-matter jurisdiction. 98 A critic might contend that the argument here is essentially that sua sponte decisions are bad, yet if they are allowed sometimes, they should be allowed in the rational-basis test. There are several reasons why not. First, it is still an exception. Exceptions ought to come with justifications. If courts do not have jurisdiction, they have no power to decide anything else, and that is why there is a subject-matter-jurisdiction exception. There is no obvious justification for an exception for the rational-basis test. There is no reason to think that the government will not effectively present its case. Second, under the rational-basis test, this sua sponte hypothesizing is obligatory, not discretionary. That is an even bigger exception. One commenter has even doubted the subject-matterjurisdiction exception, writing that there are probably few, if any, decisions in which a court is required to act sua sponte. 99 Rationalbasis decisions should not be one of those few, or perhaps even the only one. Most importantly, one difference between rational-basis hypothesizing and other sua sponte decision-making is obvious, and it is the difference at the heart of this paper: the decisions go only one surely it is not unreasonable to suspect that judges might unwittingly find themselves helping the government in other ways as well. ). 97 Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011). 98 See id. 99 Bradley Scott Shannon, Some Concerns about Sua Sponte, 73 OHIO. ST. L.J. FURTHERMORE 27, 32 (2012).

22 2014] RATIONAL BASIS, UNDUE PROCESS 735 way. There is no other rule that makes diodes of judges, energizing the state and leaving challengers in the dark. Still, some might say that the purpose of the whole system is truth. If the answer is right there in court, let the judges take it. For all the reasons discussed so far, they should not. But even if the answer is obvious, the rational-basis test still does not need to command judicial hypothesizing, because judges may already dismiss sua sponte for failure to "state a claim to relief that is plausible on its face. 100 So if someone challenges a law that says no murders in the park, and for some reason the state does not claim public safety, a judge may uphold the law even without hypothesizing under the rational-basis test. Although even then, notice and a chance to respond might be required, which they are not under the rationalbasis test. 101 Indeed, because this authority already exists, the only time the additional power granted under the rational-basis test matters is necessarily when the hypothesized basis should most be argued by the parties. Thus, the occasional permissibility of sua sponte rulings is no reason for the rational-basis test to require judges to bolster the government s case. D. AN EXAMPLE POWERS V. HARRIS Admittedly, few cases have actually been controlled by the bias requirement. The rational-basis standard is so easily met that the government rarely needs the help. This paper is more concerned with possible future trends than with past rulings. Nonetheless, it 100 See 5b CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE 1357 n.4 (3d ed. 2012) (for sua sponte dismissals); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (for plausibility). 101 See 5b WRIGHT, supra note 101, at 1357 n.4.

23 736 New York University Journal of Law & Liberty [Vol. 8:714 has happened. Probably the most disappointing example is the Tenth Circuit case Powers v. Harris. 102 The plaintiffs, Kim Powers and Dennis Bridges, were entrepreneurs in Oklahoma who saw an opportunity. 103 Oklahoma funeral homes were marking up caskets as high as six times their wholesale cost a practice unique to Oklahoma that the funeral homes own trial expert conceded was unfair to consumers. 104 So in 2001, the plaintiffs started selling caskets on the Internet, undercutting funeral homes by about half. 105 But Oklahoma prohibited anyone who was not a licensed funeral director (or the agent of a licensed funeral director) from selling caskets in Oklahoma. 106 Thus to sell to Oklahomans, the plaintiffs would have needed to become licensed funeral directors. To do that, they first would have needed to complete 60 or 120 credit-hours in a mortuary science program, during which they would have learned to, among other things, handle formaldehyde, avoid blood-borne pathogens, and master human anatomy. 107 They would have needed to pass a licensing exam on funeral directing and another on funeral law. 108 After that, they would have needed to apprentice in a funeral home for a year, during which time they would embalm at least twenty-five bodies. 109 Finally they would have needed to run a licensed funeral establishment, and so they would have had to hire a full-time embalmer and build a viewing room. 110 All this to sell boxes on the Internet. 102 Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004). 103 Id. at Opening Brief of Appellants at 14, Powers, 379 F.3d 1208 (No ), 2003 WL , at * Id. at Id. at Id. at Id. at Id. at Id. at

24 2014] RATIONAL BASIS, UNDUE PROCESS 737 The plaintiffs argued that Oklahoma s restriction failed the rational-basis test that is, it was not rationally related to any legitimate government interest. 111 Instead, they argued, it was just as irrational as requiring funeral directors to attend law or medical school. 112 In response, Oklahoma claimed that the law as a whole furthered the state interest in consumer protection. 113 Basically, Oklahoma argued that licensed funeral directors would be less likely to prey on the grieving, and it was enough that some admittedly small fraction of the coursework and apprenticeship addressed casket sales. 114 In other words, so long as the restriction was not entirely irrelevant to consumer protection, it should be sustained. The Tenth Circuit could have fixed this. Requiring people who just wanted to sell caskets to become funeral directors did nothing to help consumers. Rather, the requirement created artificial entry barriers in the casket market that restricted supply and hurt consumers. 115 Instead the Tenth Circuit made things much worse. Presumably, because it could not honestly justify the restriction as rationally related to consumer protection, the court took a different approach. Acknowledging that the whole scheme was a simple handout to one group at another s expense, the court ruled on grounds not even advanced by the state 116 that intrastate economic protectionism was a legitimate state interest. 117 And, of course, the casket law was not just rationally related, but very well-tailored to that. 111 Id. at Id. at Powers, 379 F.3d at Id. at Id. at 1227 (Tymkovich, J., concurring) ( Consumer interests appear to be harmed rather than protected by the limitation of choice and price encouraged by the licensing restrictions on intrastate casket sales. ). 116 Id. at 1226 ( [T]he majority... confer[s] legitimacy to a broad concept not argued by the Board unvarnished economic protectionism. ). 117 Id. at (majority opinion).

25 738 New York University Journal of Law & Liberty [Vol. 8:714 This should have never happened. And the incorrectness of this one case is, I think, enough to justify this whole paper. 118 Seemingly, the plaintiffs argument convinced two of the three judges. 119 Seemingly, the state s failed in the same proportion. In any other context, the plaintiffs would have won. Instead they lost on a legal theory against which they never had a chance to argue. They lost not because of the strength of their claims, but because they were never afforded an opportunity to be heard. They lost because they were denied the very essence of Due Process. Moreover, the Supreme Court has never explicitly held, nor would it, that a naked economic preference is constitutional, not in the absence of some purported public benefit. The Tenth Circuit was wrong to think otherwise. But because Powers was a rationalbasis case, a major issue in constitutional law was settled without the slightest bit of briefing. That is not just bad for the plaintiffs; that is bad for everyone. The whole point of the adversary system is to have such questions argued by parties. Indeed one concurring judge refused to join the majority s reasoning. 120 That he wrote seven hundred words attacking it shows that this argument is not settled for protectionism. 121 Yet because Powers happened to involve economic rather than gender discrimination, the plaintiffs, and constitutionally unprotected groups everywhere in the Tenth Circuit, fell into a fault line on which they never knew they were treading. 118 For others, see Lana Harfoush, Comment, Grave Consequences for Economic Liberty: The Funeral Industry s Protectionist Occupational Licensing Scheme, the Circuit Split, and Why It Matters, 5 J. BUS. ENTREPRENEURSHIP & L. 135 (2011); Jim Thompson, Survey, Powers v. Harris: How the Tenth Circuit Buried Economic Liberties, 82 DENV. U. L. REV. 585 ( ). 119 Powers, 379 F.3d at 1227 (Tymkovich, J., concurring) ( I would therefore conclude that the district court did not err in crediting the consumer protection rationale advanced by the Board. ). 120 Id. at Id. at

26 2014] RATIONAL BASIS, UNDUE PROCESS 739 E. A BUG IN THE SYSTEM. Ultimately, the rational-basis test works against basic tenets of our constitutional system. Consider the problem of factionalism, one of the reasons the Constitution was enacted in the first place. James Madison famously wrote that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. 122 Two hundred years later, this view is a basic tenet of publicchoice theory, except that factions are now called special interests or interest groups. In some situations, the judiciary bars the door to factionalism. Under strict scrutiny, a court today would never allow, for example, a naked preference 123 for White over Black. But that s exactly what it does when economic factions convince legislatures to enact economic preferences. 124 The role of judges could be to thwart the political temptation to exploit the public appetite for other people s money. 125 Instead, the rational-basis test is an open gate through which special interests walk, opened that much wider by the judicial-bias requirement. Judges are specifically required to ignore actual legislative shenanigans, 126 so long as they can hypothesize something that was legitimate although again, it is hard to be sure of legitimacy without the counterarguments of counsel. 122 THE FEDERALIST NO. 10, at (James Madison) (Clinton Rossiter ed., 1961). 123 The phrase is from Cass Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV (1984). 124 See, e.g., Hettinga v. United States, 677 F.3d 471, (D.C. Cir. 2012) (per curiam) (Brown, J., concurring). 125 Id. at Id.