Tulane Law Review
Equal protection, democratic process theory, Equal Protection Clause, facially neutral
In this Article, Professor Sheila Foster dissects the intent standard in equal protection jurisprudence, filtering it through the lens of democratic process theory. Most legal scholars and commentators writing in this area continuously restate, and critique, the "rule" of intent as a uniform standard in constitutional law. However, it is clear from the Supreme Court's jurisprudence (and that of the lower federal courts) that different levels of consciousness can satisfy the discriminatory intent standard, and hence violate the Equal Protection Clause. Exactly what explains these disparate, and seemingly incoherent, levels of intent is the subject of this Article. Professor Foster identifies a set of criteria that explains the application of these different levels of intent, using democratic process theory and its offspring, motive review theory. She then sets out to "cohere" the intent doctrine according to democratic process principles. As her analysis demonstrates, conceptualizing the different levels of intent along a continuum according to democratic process principles provides a coherent account of the intent doctrine. Moreover, the account of the intent doctrine offered in the Article also provides a framework in which to assess the Court's fidelity to its normative and doctrinal commitments. Using this framework, Professor Foster identifies two areas-administration of facially neutral laws and legislative redistricting-where judicial review raises problematic questions about the Court's fidelity to its commitments. Both areas illustrate a new type of incoherence in equal protection jurisprudence: that between the Court's treatment of certain types of incoherence in equal protection jurisprudence: that between the Court's treatment of certain types of governmental decisions and the normative justifications underlying such treatment.
Sheila R. Foster,
Intent and Incoherence, 72 Tul. L. Rev. 1065
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/248