As applied, the hierarchy of levels consists of three increasingly strict standards the state must meet to Constitutionally infringe on certain rights of certain individuals depending on whether those individuals trigger these heightened review standards. For example, we all know that a state may only discriminate on the basis of race if it has a “compelling” interest to which its discriminatory action is “narrowly tailored.” In other cases, the state need only show a “rational basis” for its action. In the middle and usually used in sex discrimination cases, a state’s action must be “substantially related” to an “important” state interest.

Obviously, these criteria are found nowhere in the Constitution or its amendments; they have been judicially fabricated over time. The the Constitution does not restrain the Court in creating this system, neither does it restrain the Court in applying or interpreting it. Moreover, while a great deal of time is devoted to understanding why the Court applies a given level under the facts of a particular case, that inquiry typically overshadows the other essential consideration: whether the facts of the case meet that standard. Put another way, while the Court has given us guidance regarding the sorts of plaintiffs that may trigger heightened levels of review, we have comparatively little guidance (and certainly not a rule) for determining what kinds of state actions satisfy such levels. We do have examples in the case law, but an example is the least efficient sort of explanation.

As a result, the Court often employs an impressive legal analysis in determining the appropriate level of review while then concluding as a matter of opinion whether or not that level is satisfied. This means that the Court can come to a conclusion on the merits of the case based solely on personal opinion (often involving social issues), then author an opinion that includes a scholarly analysis of the appropriate level of review that itself places no real constraint on the ultimate holding. In short, whether a given stat action satisfies the requisite level of review is merely a matter of divine fiat.

In my own Constitutional Law class, I was castigated for drawing attention to this fact in a hypothetical involving state funding for a museum featuring the artwork of minority artists. After the class had settled on an appropriate level of review, I was asked whether the state’s plan satisfied it. I suggested it didn’t. When asked why, I responded that “it just doesn’t.” This drew the ire of the professor who felt that my response was not sufficiently supported. My point was that neither are the responses of the Supreme Court.

A real world example should illustrate the same essential logic on the part of the Court. In Korematsu v. United States, the Supreme Court applied the highest “strict scrutiny” review to the enforcement of a military order excluding Japanese-Americans form their own homes. The majority held that national security satisfies the highest level of review and the military order therefore did not violate the plaintiff’s Constitutional rights. In dissent Justice Murphy opined that the government need only show a “rational basis” for its actions, then concluded that the government could not even satisfy this lowest standard. The majority held that the state satisfied the highest standard and the dissent said that the government could not even satisfy the lowest. The rationale used by both justices was based on their a fortiori opinions of the danger posed by the presence of Japanese-Americans, not on any recognizable legal principles, and certainly not on anything contained in the Constitution.

The evolution of this trend can be seen is cases such as Romer v. Evans, in which the Court held that an amendment to a state constitution did not meet the rational basis test, offering as support nothing more than a gross mischaracterization of the effect of the amendment. This indicates that the Court’s holding was based on previously-formed opinions of the social issue implicated in the case, since the supposed effects of a state action do not bear on whether the state had a “rational basis” for implementing the action in the first place. In short, the Court’s outrage was irrelevant to the question it was answering. The holding was a function of judicial fiat, not the application of legal principles.

Yet more examples can be seen where alienage is the ground for a Fourteenth Amendment claim. In Sugarman v. Dougall, the Court applied “close judicial scrutiny” to a law precluding non-citizens from civil service positions. Holding that the law did not meet the necessary close scrutiny, the Court’s rational was conclusory. In essence, the law wasn’t narrowly tailored because it wasn’t narrowly tailored enough. Likewise, in Plyler v. Doe, the Supreme Court held unconstitutional a Texas statute requiring non-citizens to pay tuition in order to receive public education. In this case, the Court’s results-oriented approach was so egregious that Justice Burger explicitly drew attention to it in his dissent.

This judicial environment has come to exist because the Court has bitten off more than it can legally chew. These sorts of cases before the Supreme Court were never contemplated by the framers nor are they based in the text of the Constitution or its amendments. While it is certainly understandable that the Court would need to invent a procedure for cases it was never meant to hear, the procedure we have is extremely volatile and unpredictable. Deciding social issues using a procedure that is ultimately based on the whims of whoever happens to be on the bench will result, as we have seen, in an ever-shifting foundation for such cases. Since the Court’s rulings on social issues often work the result of completely removing those issues from the democratic process, it is all the more imperative that the Court be constrained by solid and predictable legal principles. Otherwise, we are constantly left to wonder how the Court might rule on this issue or that.

A significant segment of the population casts its ballots in presidential elections based primarily on the anticipation of Supreme Court appointments and it’s not because America is concerned with the Court’s application of RICO statutes. It’s because we know that the Court’s self-delegated substantive due process jurisprudence has transformed it from the branch that was designed to be insulated from the political process into the most powerful political body in the nation.

So now we’ve got one year down, two more to go. Here’s to hoping the next two are as fun as the first.

Do NOT, and I repeat, do NOT do anything stupid that you will have to report to the Board of Bar Admissions. Need I remind you that you a spending a great deal of money for your education…..don’t blow it all by doing something that will make all your hard work be for naught!

The issue has been discussed in many fora, including this representative article. The use of the masculine pronoun is now viewed by our culture as inherently sexist. The alternatives range from illogical to utterly bizarre:”she,” “(s)he,” “he/she,” and, “they” are some common examples, the latter of which amounts to a decision to replace the singular pronoun altogether with the plural. Some of the more creative approaches involve alternating “he” and “she” every time a generic pronoun is required.

The solution to this imaginary problem which legal writers have apparently adopted is the blanket use of the feminine. Therefore, whenever examples are given in law school (and there are lots of examples), all the criminals, tortfeasors, parties, judges, attorneys, witnesses, and victims are women.

Since English has no separate generic pronoun, we obviously have to use something. The compound pronouns (he/she) are unwieldy and the plural pronoun (they) is just simply wrong: Any student interested in the optional seminar should bring their enrollment form to class. That is (and should remain) a wrong answer on the SAT.

So then what’s the answer? It is suggested that using the masculine is sexist. If this is true, using the feminine is no less sexist. Since we are resolved that our only options are sexism or the devolution of the English language, let us err on the side of sexism. Furthermore, though the number of women in the legal profession is increasing, men still constitute the vast majority of American judges, lawyers, and criminals. So if we are going to be sexist anyway, let us do so in a way that is not only supported by over a millennia of tradition, but is also likely to be accurate four times out of five.