As a government attorney defending economic legislation from a constitutional challenge under the Fourteenth Amendment—How would you rate your chances of success? Surely excellent. After all, hornbook constitutional law requires only the assembly of a flimsy underlying factual record for economic legislation to pass rational basis review.
But the recent uptick in courts questioning the credibility of legislative records might give pause to your optimism. As a growing body of scholarship has identified, the Supreme Court and federal courts of appeals increasingly invalidate laws under rational basis review despite the presence of an otherwise constitutionally sufficient legislative record. Under this “credibility-questioning” rational basis review, courts both ignore post hoc rationales that would legitimate a government interest and scrutinize the fit between the challenged statute’s means and ends. Nevertheless, recent scholarship has overlooked why courts have, and should, engage in credibility-questioning rational basis review, particularly of economic legislation.
This Note proposes an answer: Courts should apply credibilityquestioning rational basis review to economic legislation that (1) impedes liberty interests central to personhood, (2) burdens politically unpopular minority groups, or (3) benefits concentrated interest groups at the expense of diffuse majorities.
Todd W. Shaw,
Rationalizing Rational Basis Review,
Nw. U. L. Rev.