Tag Archives: equal_protection

Judicial Elections and Equal Protection?

In the forthcoming issue of Judicature, there is a symposium on James L. Gibson’s new book, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy.[1]  The commentators, Sara Benesh, Robert Hume, Matt Streb, and Lee Epstein, all sing the praises of Gibson’s latest work and discuss a number of issues regarding judicial elections and relate them to his findings.  Interestingly, both Epstein and Streb wonder about a potential equal protection problem.  I find their concerns intriguing from the standpoint of constitutional law and judicial politics.

Essentially, the argument stems from research revealing a tendency for elected judges to vote more harshly in some areas than others (the death penalty is the most cited and obvious case) and to vote more or less harshly depending on where in the electoral cycle the case is inserted.  Gibson finds these arguments specious; judges will make different decisions and no one is guaranteed the same outcome for the same crime in the district.  Two judges will likely handle the matter differently.  Additionally, there are many reasons why a judge might be harsher on some crimes or defendants at one point in time than another.  After a series of particularly violent crimes or high profile thefts, a judge might sentence defendants convicted of similar crimes differently to set an example.

Gibson is correct that there are infinite reasons why different judges may behave differently or the same judge may behave dissimilarly at different points in time.  The issue or concern is more than judges behaving differently or a judge reacting to the political context surrounding a crime or string of crimes.  I am sure after the massive Enron fraud or the Madoff ponzi scheme was uncovered and the damages to individuals made headlines, many judges were a bit harder when sentencing similar defendants.  I am also sure no one would quibble with such a discrepancy in judicial behavior—all of our decisions are affected by context.  However, a systematic and predictable pattern of changes in judicial decision-making related to the timing of elections may be a horse of a different color.  If judges make calculated choices to treat similar defendants differently simply because the case happens to appear on their docket two months prior, rather than two months after, their next election, the reaction is one of self-interest.  Altering behavior because an external stimulus forces a re-evaluation of values—for judges and layfolk alike—is not the same as calculating an abrupt shift simply because of an upcoming retention or general election.  The election stimulus is unrelated to the facts of the case or the crime committed unlike a high profile scandal revealing a need for stricter sentencing. Such behavior is expected among other elected politicians—legislators or executive branch officials, but as Gibson’s new book and the symposium highlight, the judicial branch must be concerned with its legitimacy, perceptions of fairness, and due process.[2]  To the extent that judges behave like politicians, they could undermine the strength of public perceptions of legitimacy and fairness,

Even so, is the finding that there is a cycle of decision-making related to electoral necessity grounds for claiming either a due process or equal protection violation?  The trial doesn’t change and the institutional and constitutional rules still apply.  The sentence, albeit harsher, is not necessarily out of the bounds of regular practice.  And the claim that one sentence is harsher than another due to proximity to an election would be much harder to prove and receive a different level of scrutiny than a claim that sentence length is due to race or gender.

The concern is real.  Regardless of the debate between accountability and independence, and regardless of how judges make their decisions (based upon ideology, constituent preferences, etc.), we do and should expect those decisions to be consistent and stable.  But I do not see any way we can argue that such results are constitutionally guaranteed.


[1] Chicago, IL: University of Chicago Press, 2012

[2] Gibson’s book argues that judicial elections do not undermine legitimacy; rather, judicial elections may actually boost it.

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Filed under Discrimination, The Judiciary

Sewer Taxes & Gay Rights?

On November 14th, the Supreme Court docketed an equal protection case out of Indiana, (Armour v. Indianapolis).  The case deals with a city’s decision to forgive some sewer taxes and not others.  Indianapolis passed a sewer levy in 2004 that applied to some properties within the city.  The City gave these property owners a choice—pay the entire tax at once or do so in monthly payments.  Some owners chose the former and others the latter.  A year later, the Indianapolis Board of Public Works decided to alter their system of paying for sewer improvements and forgave the outstanding payments left from the old system, but would not provide refunds, partial or otherwise, to the property owners who paid the full amount (a little over $9,000).[1]

It should not be surprising that this decision led to a lawsuit.  The property owners won at the trial court, but then lost upon appeal to the Indiana Supreme Court. According to precedent, the appropriate standard of review for an economic equal protection claim is rational basis.[2]  Both state courts applied this level of scrutiny, but the judges came to different conclusions.  Of the five justices on the Indiana Supreme Court, one dissented, holding that the state did not manage to meet even the extremely lenient rational basis test.  Given the deference provided to government under the rational basis test, this dissent is out of the ordinary.

And that same deference makes the grant of cert interesting in and of itself.  After all, if the Court reverses it provides a precedent for overturning economic regulations or laws based upon the equal protection clause that seemed foreclosed by San Antonio Independent School District v. Rodriguez 411 US 1 (1973).  Either way, the majority and dissenting opinion from the Indiana Supreme Court may force the Court to face a discrepancy in the application of rational basis created by the decision in Romer v. Evans 517 US 620 (1996).

In the majority opinion in Romer, Justice Kennedy made it clear that he was applying the rational basis test.  And in his majority opinion in Lawrence v. Texas 539 US 558 (2003), Kennedy implied that if he did examine the Texas sodomy statute under equal protection, it, too, would fall under rational basis.

As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause.  That is a tenable argument…(539 US 574)

Evan Gerstmann argues that in Romer it is clear that Kennedy is holding Colorado to a fairly high standard despite the ‘rational basis’ rhetoric.

We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e. g., Heller v. Doe, 509 U.S. 312, 319-320, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993). Amendment 2 fails, indeed defies, even this conventional inquiry. (Romer v. Evans 517 US 631-32).

Evan Gerstmann suggests that Kennedy is actually applying second order rational basis much the same as the Court did in City of Cleburne v. Cleburne Living Center 473 US 432 (1985). [3]  In the latter case, the Supreme Court struck down a city ordinance preventing the establishment of a group home based upon the rational basis test.  Justice Marshall wrote separately to make clear that there was certainly a minimal rational basis for the law and that the test applied was something more—dubbing it ‘second-order rational basis’.  Gerstmann contends that the Court applied this ‘second-order’ or ‘rational basis with teeth’ in Romer; as it seems that Justice Scalia agrees.  As he points out in his dissent, at the time of Romer, Bowers v. Hardwick 478 US 186 (1986) was still good law.  In Bowers, the Court held that government makes no constitutional wrong by defining homosexual sexual conduct as a crime.[4]  Thus if precedent allows the criminalization of homosexual conduct, it must also allow the barring of preferential treatment under the law for homosexuals as a class.  (517 US 640)

How does the line of cases dealing with homosexual conduct and protection relate to an economic equal protection case involving sewer taxation?  Given that the opinion by the Indiana Supreme Court finds three interests[5] served by the change in law regarding sewer taxes, it is hard to see how Indianapolis cannot pass that lowest of hurdles—rational basis—set out in Williamson v. Lee Optical  348 U.S. 483 (1955): “The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”[6]  Yet, the Supreme Court has docketed this case and it hardly seems like a case that would be docketed simply to affirm on a Court with such miserly allocation of space on its oral argument calendar.  If the Court has accepted this case to reverse, as has been a noted trend dubbed the ‘error correction strategy’, and they apply second order rational basis to nullify the state Supreme Court ruling, what are the implications for future changes in the standards for economic equal protection questions?

It will be interesting to listen to the oral argument and see which form of rational basis is applied to the Indianapolis ordinance, and if the Court acknowledges the differential standard.

On June 4th, the Supreme Court upheld the city’s decision using the rational basis test.  The ruling was 6-3.  For more information see http://www.scotusblog.com/2012/06/opinion-recap-not-so-equal-tax-equality/#more-146020.


[1] The property owners involved in the suit were involved in one of 40 programs under the old law.  No property owners received refunds from any of the projects regardless if they paid in full upfront or had paid large amounts via the installment plan.

[2] See page 579 of the Rights, Liberties and Justice text citing McGowan v. Maryland (1961).

[3] See Chapter Six, The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection. 1999.  University of Chicago Press.

[4] This case was later overturned by the majority decision in Lawrence v. Texas in 2003.

[5] The three interests found were: 1) the previous funding method “imposed financial hardships on middle- and low-income property owners; 2) moving to the new method for funding sanitation improvements simplified the collection of sanitary sewer funding; 3) providing no refunds preserved limited governmental resources.

[6] See page 387 of the Rights, Liberties, and Justice text.  Williamson and this quote are used to define the rational basis test.

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Filed under Discrimination, Economic Substantive Due Process