Document Type

Article

Publication Title

Columbia Law Review

Volume

119

Publication Date

2019

Keywords

judicial review, legislative

Abstract

Judicial inquiries into political branch motivation have long bedeviled courts and scholars. Especially vexing are questions regarding judicial review of facially neutral government action. The canonical decision in this arena, Washington v. Davis, holds that facially neutral legislation or administrative action resulting in a disparate impact on the basis of race or gender will not on its own trigger heightened scrutiny. In order to invoke more careful scrutiny of government action, there must be evidence of discriminatory intent. Many scholars understand the Court’s intent doctrine to license malintent by encouraging policymakers to conceal invidious purposes behind facially neutral language. For this reason, many argue that Davis is a low point for equal protection that fails to address the many forms of state-sponsored discrimination.

This Article offers a different approach to motivational inquiries by examining how the political process itself can be an important site of information. Legislative and executive decision-making—or “small-p” process—can bear heavily on the question whether the government has acted properly or improperly. This idea of “small-p” process scrutiny stands in contradistinction to a more well-established notion, famously articulated by process theorist John Hart Ely, that flaws within deliberative processes can invite, if not require, judicial protection of excluded interests. Ely’s classic rationale for heightened scrutiny was based upon the Constitution’s role in preserving accessibility to the political process—what I call “Big-P” process. Small-p processes, by contrast, concern more evident procedures, such as the quality or duration of deliberation, the involvement of experts, the facilitation of regular public hearings and open debate, or the documentation of studies and reasoning behind various policies.

This Article seeks to overcome the difficulties of uncovering and operationalizing “Big-P” process failure by showing how a breakdown in more evident and easily detectable kinds of process failure can help bring to the surface forms of improper intent that are otherwise hard to see. I posit that courts can rely upon “small-p” indicia to decipher motivation, especially where there is no record of Big-P political failure or similar smoking-gun evidence of discrimination. By shifting the inquiry from interest-group dynamics in the legislative process to more ordinary forms of process, I offer a method that is available to courts to surface malintent (or vindicate government intent) trans-substantively, and in ways already established in doctrine.

One important advantage of a small-p process framework is that it is based less on substantive interpretations of value and intent—which can be highly contested and subjective—and more on objective criteria grounded in the political branches’ own chosen practices. Yet if process scrutiny offers powerful and revelatory indicators of governmental motivation, the theory also raises a number of concerns, including the risk of incentivizing or permitting an enacting body to camouflage other substantive deficiencies by simply meeting a bare minimum level of deliberative procedure, setting the stage for evasion.

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