Is Justice Class-Blind?

A forthcoming study by a University of Texas-Austin law professor says conservative jurists have begun to question precedents applying the equal protection clause of the Fourteenth Amendment to poor Americans.

An emerging body of conservative jurisprudence asserts that poor Americans are not eligible for special protection under the Constitution, setting up a conflict with decades of precedent in which the Fourteenth Amendment’s guarantees of equal protection under the law have been applied to class-based arguments.

In a synopsis of her forthcoming Yale Law Journal article, Professor Cary Franklin of the University of Texas at Austin School of Law examines the forms of class-based constitutional protection that the Supreme Court has developed over time, and explores how they are under attack by conservative judges.

The Court has never recognized the poor as a protected class, and class-based discrimination does not receive heightened scrutiny under the equal protection guarantees of the Fourteenth Amendment the way that race-based and sex-based discrimination do.

But legal advocates have won some major class-related victories this year.

In January, an appellate court ruled that California’s money bail system violated the Fourteenth Amendment rights of indigent defendants. A month later, the Fifth Circuit Court held money bail procedures in Harris County, Texas, unconstitutional on the grounds that they keep the “poor arrestee” behind bars “simply because he has less money than his wealthy counterpart.”

These cases are based on long-standing precedents where the Court demonstrated a clear degree of class-consciousness, writes Franklin. For example, the Court uses an “undue burden test” to assess whether abortion regulations are constitutional. To be permissible, a regulation must not impose an undue burden on the subset of women who are realistically affected by it – oftentimes poor women. Even if a regulation does not unduly burden wealthier women, it is deemed unconstitutional if it places an undue burden on their indigent counterparts.

The Court applies a similar test in cases involving voter ID laws. If an ID requirement unduly burdens voters for whom the requirement constitutes a real obstacle – not just the average voter – it is unconstitutional.

Nevertheless, conservative judges have recently been claiming that it is constitutionally impermissible for courts to take class into account under the Fourteenth Amendment.

In 2013, the Fifth Circuit Court tried to curtail the undue burden test in Whole Woman’s Health v. Hellerstedt, ruling that judges could consider only the obstacles created by the law itself when determining whether a regulation unduly burdens the right to abortion. This would rule out consideration of obstacles such as lack of transportation, the need to find childcare, etc. Though the Supreme Court later overturned the ruling, some Justices (in dissent) expressed support for this approach.

Certain judges have also advocated class-blindness in the context of voting rights.

This approach has no root in precedent, Franklin writes, adding that a majority of Supreme Court Justices have thus far rejected it when it has arisen. But whether they will continue to oppose efforts to dismantle class-related fundamental rights protections, particularly with another Trump-appointee on the Court, is impossible to say.

Elena Schwartz is a TCR news intern. She welcomes comments from readers.