David H. Schraub has posted Unsuspecting on SSRN. Here is the abstract:
-
All laws classify, but not all classifications are created equal. Under contemporary Fourteenth Amendment doctrine, certain classifications are “suspect”, triggering heightened judicial review and often rendering the targeted legislation unconstitutional. Because the alternative rational basis test is so deferential, the question over which sorts of classifications are “suspect” may be the single most important — and most discussed — issue in equal protection doctrine. Yet amidst all the talk about how a group gains recognition as a “suspect class”, there has been virtually no discussion about the seemingly obvious corollary: how a group loses its status as one. After all, if suspect status is designed for a particular, exceptional sort of minority — for example, those peculiarly unable to protect themselves in the political process — facts indicating that the group is no longer saddled by these disabilities should kick it back into the normal rough-and-tumble of democratic politics. But no case has even contemplated, much less seriously threatened, that a hitherto protected class might one day be removed from the list. By all appearances, suspect classification is a one-way ratchet.
This is a mistake. The criteria we use to assess which classifications are “suspect” are nearly all transient in character, and there are ample reasons — ranging from general democratic values to structural limitations on the judiciary’s ability to protect a wide range of marginalized groups — to question the status quo where suspect classifications are perpetual in duration. Unfortunately, judges who might desire remove a protected class from the suspect ranks face high hurdles, which may explain why the idea of unsuspecting is so curiously absent from equal protection doctrine. To overcome these barriers, I propose that suspect classification designations be subject to a, renewable sunset. A sunset provision allows the judiciary to respond to changing factual circumstances while removing many of the inertial barriers which allow archaic suspect classifications to endure beyond their expiration date. And even if courts elect to renew the current crop of suspect classifications indefinitely, a sunset would force them to provide rationales beyond bare adherence to precedent and thus bring some measure of clarity to the notoriously opaque suspect classification inquiry.
