Two cheers for Justice Stevens


Author: Timothy Sandefur

Obviously we at Pacific Legal Foundation disagree with many of the views of Justice John Paul Stevens, who today announced his decision to retire from the Supreme Court after 34 years of service. Most notable was his decision in Kelo v. New London. But there are two things I’ve always respected about his judicial views, that deserve mention: his attitude toward the “rational basis” test, and his recognition of the abuses of occupational licensing laws.

The rational basis test is the analysis courts apply when reviewing the constitutionality of laws that deprive people of their economic freedom or private property rights, or that treat them differently than their neighbors for “non-suspect” reasons. This legal “test”—not really a test at all, when you get down to it—is inherently biased toward the government. That’s because it puts the burden of proof on the plaintiff who challenges the constitutionality of a law, and requires the plaintiff to prove that there is simply no rational justification for the law at all. Yes, that’s right, it requires a plaintiff to prove a negative—something that isn’t logically possible. If the judge thinks there might be some legitimate reason for the law—even if it’s a reason the legislature never actually considered when it passed that law—the judge will hold the law constitutional.

And it gets worse, because some courts have said that the test requires the judge to invent his or her own justification for the challenged law. On this theory, if the government lawyer says the law is constitutional for reason X, and you disprove X entirely, the judge can invent reason Y on the spur of the moment and still rule for the government. One federal judge once said that this test “invites us to cup our hands over our eyes and then imagine if there could be anything right with the statute.”

This entire scheme is cockeyed, and to his credit, Justice Stevens has been among the leading critics of “rational basis review.”

In F.C.C. v. Beach Communications (1993), Justice Clarence Thomas wrote that the rational basis test would uphold a law if “any reasonably conceivable state of facts…could provide a rational basis” for the law, and that “it is entirely irrelevant for constitutional purposes whether the legislature was actually motivated by the conceived reason.” This just can’t be right, because of course it’s possible to “reasonably conceive” virtually anything, and this would mean that the government could escape judicial review simply by asserting, without any factual basis, that the challenged law is rational. And Justice Stevens noted as much in a separate opinion: “this formulation sweeps too broadly, for it is difficult to imagine a legislative classification that could not be supported by a ‘reasonably conceivable state of facts.’ Judicial review under the ‘conceivable set of facts’ test is tantamount to no review at all.”

Stevens made the same point in United States Railroad Retirement Bd. v. Fritz (1980), when he argued that

if any “conceivable basis”…will repel a constitutional attack…judicial review will constitute a mere tautological recognition of the fact that Congress did what it intended to do…. When Congress deprives a small class of persons of vested rights that are protected…for others who are in a similar though not identical position, I believe the Constitution requires something more than merely a “conceivable” or a “plausible” explanation for the unequal treatment.

In 1996, four years after Beach Communications, the Court adopted the much more sensible version of rational basis for which Justice Stevens had long argued. In Romer v. Evans, Justice Anthony Kennedy clarified that “rational basis” must actually be rational, and not just some imaginary justification. “Even in the ordinary equal protection case calling for the most deferential of standards,” wrote Kennedy,

we insist on knowing the relation between the classification [the legislature] adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority…. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.

Kennedy supported this last statement by quoting from Justice Stevens’ Fritz decision: “If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”

Two important notes: first, this decision is good for those of us who have a deeper respect for property rights and economic liberty, because legislatures often restrict these rights simply to affect adversely the rights of property and business owners. Take, for example, occupational licensing laws, which often do nothing more than protect established businesses against fair competition by newcomers to the market.

Fittingly enough, one of the few recent Supreme Court justices to acknowledge this problem was John Paul Stevens, who dissented in Hoover v. Ronwin in 1984. That was a case against the state of Arizona, which restricted the number of lawyers who could pass the bar exam, not in order to protect the public from bad lawyers, but simply to keep down competition so they could keep their prices up. The Supreme Court allowed this cartel to continue, but in his dissenting opinion, Justice Stevens remarked,

A potential conflict arises…whenever government delegates licensing power to private parties whose economic interests may be served by limiting the number of competitors who may engage in a particular trade. In fact private parties have used licensing to advance their own interests in restraining competition at the expense of the public interest. See generally Gellhorn, The Abuse of Occupational Licensing, 44 U. Chi. L. Rev. 6 (1976).

Getting back to the rational basis test, it’s noteworthy that Romer did not create some new legal test, or use “rational basis with bite,” or anything like that. Instead, it explained that although courts will defer to legislative decisions, they won’t completely abdicate their judicial duty to review both the legislature’s goal and the means it chooses for pursuing that goal. If courts refuse to make that review, it would be easy for legislatures to evade constitutional limits by claiming—with no evidence—that the law was adopted for a legitimate purpose. If the Constitution is to limit legislatures (which it should), then courts must not swallow such pretexts without question.

I do wish other judges would be willing to recognize how occupational licensing and other restrictions on economic freedom deprive individuals of opportunity with no real connection to public health and safety. But they can only do so if they abandon the excessively deferential conception of “rational basis” against which Justice Stevens argued so strongly.

Update: My friend Timothy Lee offers some other reasons to applaud Justice Stevens.