|Trimble v. Gordon
[ Powell ]
[ Rehnquist ]
Trimble v. Gordon
APPEAL FROM THE SUPREME COURT OF ILLINOIS
MR. JUSTICE REHNQUIST, dissenting.
The Fourteenth Amendment's prohibition against "any State . . . deny[ing] to any person . . . the equal protection of the laws" is undoubtedly one of the majestic generalities of the Constitution. If, during the period of more than a century since its adoption, this Court had developed a consistent body of doctrine which could reasonably be said to expound the intent of those who drafted and adopted that Clause of the Amendment, there would be no cause for judicial complaint, however unwise or incapable of effective administration one might find those intentions. If, on the other hand, recognizing that those who drafted and adopted this language had rather imprecise notions about what it meant, the Court had evolved a body of doctrine which both was consistent and served some arguably useful purpose, there would likewise be little cause for great dissatisfaction with the existing state of the law.
Unfortunately, more than a century of decisions under this Clause of the Fourteenth Amendment have produced neither of these results. They have, instead, produced a syndrome wherein this Court seems to regard the Equal Protection Clause as a cat-o'-nine-tails to be kept in the judicial closet as a threat to legislatures which may, in the view of the judiciary, get out of hand and pass "arbitrary," "illogical," or "unreasonable" laws. Except in the area of the law in which the Framers obviously meant it to apply -- classifications based on race or on national origin, the first cousin of race -- the Court's decisions can fairly be described as an endless tinkering with legislative judgments, a series of conclusions unsupported by any central guiding principle.
It is too well known to warrant more than brief mention that the Framers of the Constitution adopted a system of [p778] checks and balance conveniently lumped under the descriptive head of "federalism," whereby all power was originally presumed to reside in the people of the States who adopted the Constitution. The Constitution delegated some authority to the federal executive, some to the federal legislature, some to the federal judiciary, and reserved the remaining authority normally associated with sovereignty to the States and to the people in the States. In reaching the results that it did, the Constitutional Convention in 1787 rejected the idea that members of the federal judiciary should sit on a council of revision and veto laws which it considered unwise; the Convention also rejected a proposal which would have empowered Congress to nullify laws enacted by any of the several States.
Following the Civil War, Congress propounded and the States ratified the so-called "Civil War Amendments" -- the Thirteenth, Fourteenth, and Fifteenth Amendments, which, together with post-Civil War legislation, sharply altered the balance of power between the Federal and State Governments. See Mitchum v. Foster, 407 U.S. 225, 238-242 (1972). But they were not designed to accomplish this purpose in some vague, ill-defined way which was ultimately to be discovered by this Court more than a century after their enactment. Their language contained the mechanisms by which their purpose was to be accomplished. Congress might affirmatively legislate under § 5 of the Fourteenth Amendment to carry out the purposes of that Amendment; and the courts could strike down state laws found directly to violate the dictates of any of the Amendments.
This was strong medicine, and intended to be such. But it cannot be read apart from the original understanding at Philadelphia: the Civil War Amendments did not make this Court into a council of revision, and they did not confer upon this Court any authority to nullify state laws which were merely felt to be inimical to the Court's notion of the public interest. [p779]
That much is common ground, at least at the conscious level. But, in providing the Court with the duty of enforcing such generalities as the Equal Protection Clause, the Framers of the Civil War Amendments placed it in the position of Adam in the Garden of Eden. As members of a tripartite institution of government which is responsible to no constituency, and which is held back only by its own sense of self-restraint, see United States v. Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting), we are constantly subjected to the human temptation to hold that any law containing a number of imperfections denies equal protection simply because those who drafted it could have made it a fairer or a better law. The Court's opinion in the instant case is no better and no worse than the long series of cases in this line, a line which unfortunately proclaims that the Court has indeed succumbed to the temptation implicit in the Amendment.
The Equal Protection Clause is itself a classic paradox, and makes sense only in the context of a recently fought Civil War. It creates a requirement of equal treatment to be applied to the process of legislation -- legislation whose very purpose is to draw lines in such a way that different people are treated differently. The problem presented is one of sorting the legislative distinctions which are acceptable from those which involve invidiously unequal treatment.
All constitutional provisions for protection of individuals involve difficult questions of line drawing. But most others have implicit within them an understandable value judgment that certain types of conduct have a favored place and are to be protected to a greater or lesser degree. Obvious examples are free speech, freedom from unreasonable search and seizure, and the right to a fair trial. The remaining judicial task in applying those guarantees is to determine whether, on given facts, the constitutional value judgment embodied in such a provision has been offended in a particular case.
In the case of equality and equal protection, the constitutional [p780] principal -- the thing to be protected to a greater or lesser degree -- is not even identifiable from within the four corners of the Constitution. For equal protection does not mean that all persons must be treated alike. Rather, its general principle is that persons similarly situated should be treated similarly. But that statement of the rule does little to determine whether or not a question of equality is even involved in a given case. For the crux of the problem is whether persons are similarly situated for purposes of the state action in issue. Nothing in the words of the Fourteenth Amendment specifically addresses this question in any way.
The essential problem of the Equal Protection Clause is therefore the one of determining where the courts are to look for guidance in defining "equal," as that word is used in the Fourteenth Amendment. Since the Amendment grew out of the Civil War and the freeing of the slaves, the core prohibition was early held to be aimed at the protection of blacks. See Strauder v. West Virginia, 100 U.S. 303 (1880); Bickel, The Original Understanding and the Segregation Decision, 69 Harv.L.Rev. 1 (1955). If race was an invalid sorting tool where blacks were concerned, it followed logically that it should not be valid where other races were concerned, either. See Yick Wo v. Hopkins, 118 U.S. 356 (1886). A logical, though not inexorable, next step was the extension of the protection to prohibit classifications resting on national origin. See Oyama v. California, 332 U.S. 633 (1948).
The presumptive invalidity of all of these classification has made decisions involving them, for the most part, relatively easy. But when the Court has been required to adjudicate equal protection claims not based on race or national origin, it has faced a much more difficult task. In cases involving alienage, for example, it has concluded that such classifications are "suspect" because, though not necessarily involving race or national origin, they are enough like the latter to warrant similar treatment. See Graham v. Richardson, [p781] 403 U.S. 365 (1971); Sugarman v. Dougall, 413 U.S. 634 (1973); In re Griffiths, 413 U.S. 717 (1973). While there may be individual disagreement as to how such classes are to be singled out and as to whether specific classes are sufficiently close to the core area of race and national origin to warrant such treatment, one cannot say that the inquiry is not germane to the meaning of the Clause.
Illegitimacy, which is involved in this case, has never been held by the Court to be a "suspect classification." Nonetheless, in several opinions of the Court, statements are found which suggest that, although illegitimates are not members of a "suspect class," laws which treat them differently from those born in wedlock will receive a more far-reaching scrutiny under the Equal Protection Clause than will other laws regulating economic and social conditions. Levy v. Louisiana, 391 U.S. 68 (1968); Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73 (1968); Labine v. Vincent, 401 U.S. 532 (1971); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972); Gomez v. Perez, 409 U.S. 535 (1973); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973); Jimenez v. Weinberger, 417 U.S. 628 (1974). But see Mathews v. Lucas, 427 U.S. 495 (1976). The Court's opinion today contains language to that effect. Ante at 766-767. In one sense, this language is a source of consolation, since it suggests that parts of the Court's analysis used in this case will not be carried over to traditional "rational basis" or "minimum scrutiny" cases. At the same time, though, it is a source of confusion, since the unanswered question remains as to the precise sort of scrutiny to which classifications based on illegitimacy will be subject.
The appropriate "scrutiny," in the eyes of the Court, appears to involve some analysis of the relation of the "purpose" of the legislature to the "means" by which it chooses to carry out that purpose. The Court's opinion abounds in language of this sort. We are told that
the sufficiency of the justifications [p782] advanced for the remaining discrimination against illegitimate children must be considered in light of this motivating purpose [discussed by the Supreme Court of Illinois].
Ante at 768. The Court comments that, while "[t]he Illinois Supreme Court relied in part on the State's purported interest in ‘the promotion of [legitimate] family relationships,'" the statute, in the opinion of this Court, "bears only the most attenuated relationship to the asserted goal." Ibid. We are further told that
[t]he court below did not address the relation between § 12 and the promotion of legitimate family relationships, thus leaving the constitutional analysis incomplete.
Ante at 769. But large parts of the Court's opinion are devoted to its assessment of whether § 12 of the Illinois Probate Act did or did not "advance" the "purpose" which the Illinois Legislature had in mind when it passed that section. The crowning irony of the opinion is its assertion that
the judicial task here is the difficult one of vindicating constitutional rights without interfering unduly with the State's primary responsibility in this area.
Ante at 771.
The "difficulty" of the "judicial task" is, I suggest, a self-imposed one, stemming not from the Equal Protection Clause, but from the Court's insistence on reading so much into it. I do not see how it can be doubted that the purpose (in the ordinary sense of that word) of the Illinois Legislature in enacting § 12 of the Illinois Probate Act was to make the language contained in that section a part of the Illinois law. I presume even the Court will concede that this purpose was accomplished. It was this particular language which the Illinois Legislature, by the required vote of both of its houses and the signature of the Governor, enacted into law. The use of the word "purpose" in today's opinion actually expands the normal meaning of the word into something more like motive. Indeed, the Court says that the law "must be considered in light of this motivating purpose." Ante at 768. The question of what "motivated" the various individual [p783] legislators to vote for this particular section of the Probate Act, and the Governor of Illinois to sign it, is an extremely complex and difficult one to answer even if it were relevant to the constitutional question:
Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant" or "primary" one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality.
Arlington Heights v. Metropolitan Housing Dev. Corp. 429 U.S. 252, 265 (1977) (footnote omitted). What the Court in this case is apparently trying to ascertain is what the legislature had in mind or was trying to accomplish by enacting § 12. And, of course, this is actually an inquiry into motive: why did the legislature pass this particular law?
If the great difficulties, described in Arlington Heights, supra, of ascertaining what various individual legislators "had in mind" when they voted to enact § 12 of the Illinois Probate Act are surmounted, this Court then takes it upon itself to inquire into whether the Act in question accomplished the "purpose" which the Court first determines the legislature had in mind. It should be apparent that litigants who wish to succeed in invalidating a law under the Equal Protection Clause must have a certain schizophrenia if they are to be successful in their advocacy: they must first convince this Court that the legislature had a particular purpose in mind in enacting the law, and then convince it that the law was not at all suited to the accomplishment of that purpose.
But a graver defect than this in the Court's analysis is that it also requires a conscious second-guessing of legislative judgment in an area where this Court has no special expertise [p784] whatever. Even assuming that a court has properly accomplished the difficult task of identifying the "purpose" which a statute seeks to serve, it then sits in judgment to consider the so-called "fit" between that "purpose" and the statutory means adopted to achieve it. In most cases, and all but invariably if the Court insists on singling out a unitary "purpose," the "fit" will involve a greater or lesser degree of imperfection. Then the Court asks itself: how much "imperfection" between means and ends is permissible? In making this judgment, it must throw into the judicial hopper the whole range of factors which were first thrown into the legislative hopper. What alternatives were reasonably available? What reasons are there for the legislature to accomplish this "purpose" in the way it did? What obstacles stood in the way of other solutions?
The fundamental flaw, to me, in this approach is that there is absolutely nothing to be inferred from the fact that we hold judicial commissions that would enable us to answer any one of these questions better than the legislators to whose initial decision they were committed. Without any antecedent constitutional mandate, we have created on the premises of the Equal Protection Clause a school for legislators, whereby opinions of this Court are written to instruct them in a better understanding of how to accomplish their ordinary legislative tasks.
I would by no means suggest that this case is the first, and I fear it will not be the last, to import this sort of analysis into the Equal Protection Clause. As long ago as Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920), the Court declared that a classification, to be valid under the Equal Protection Clause, "must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. . . ." Mr. Justice Pitney wrote the opinion of the Court in that case, and Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. While the quotation, in context is, [p785] far less objectionable than the just-quoted excerpt, it seems to me that there is little doubt that this case would be decided differently today.
The familiar quotation from Royster Guano comes from a time when the Court was giving a broad reading to both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to invalidate legislation in a way which, it is hoped, would not recur today. See, e.g., Concordia Ins. Co. v. Illinois, 292 U.S. 535 (1934); Hartford Co. v. Harrison, 301 U.S. 459 (1937). Every law enacted, unless it applies to all persons at all times and in all places, inevitably imposes sanctions upon some and declines to impose the same sanctions on others. But these inevitable concomitants of legislation have little or nothing to do with the Equal Protection Clause of the Fourteenth Amendment, unless they employ means of sorting people which the draftsmen of the Amendment sought to prohibit. I had thought that cases like McGowan v. Maryland, 366 U.S. 420, 426 (1961), in which the Court, speaking through Mr. Chief Justice Warren, said that "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it," and McDonald v. Board of Election, 394 U.S. 802, 809 (1969), in which the Court, again speaking through Mr. Chief Justice Warren, said that
[l]egislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them,
would have put to rest the expansive notions of judicial review suggested in the above-quoted excerpt from Royster Guano.
Here, the Illinois Legislature was dealing with a problem of intestate succession of illegitimates from their fathers, which, as the Court concedes, frequently presents difficult problems of proof. The provisions of Illinois Probate Act § 12, as most recently amended, alleviate some of the difficulties which previously [p786] stood in the way of such succession. The fact that the Act in question does not alleviate all of the difficulties, or that it might have gone further than it did, is to me wholly irrelevant under the Equal Protection Clause. The circumstances which justify the distinction between illegitimates and legitimates contained in § 12 are apparent with no great exercise of imagination; they are stated in the opinion of the Court, though they are there rejected as constitutionally insufficient. Since Illinois' distinction is not mindless and patently irrational, I would affirm the judgment of the Supreme Court of Illinois.