SDP strand of EP

SDP cases that were cast in an EP light bc courts were afriad of lochnerizing

1. Carolene Products (1938) to Griswold (1965) - These decisions might have been characterized under substantive due process, but occurred during “dark ages” when court worried about Lochnerizing

   1. Court recast them as equal protection claims when they should have been SDP claims

fundamental rights strand cases that deal w classifications by statutes that significantly interfere w fundamental rights are generally what types of cases:

voting, right to travel, access to justice

Can all successful SDP claims be re-cast an an EP claim?

Yes, all successful fundamental rights SDP claims can be re-cast as an EP claim

First: identify the classification

Second: determine whether or not the groups are similarly situated (is there an adequate justification for treating the two groups differently based on the characteristic that differentiates the groups?)

Can all successful EP claims be re-cast as successful fundamental rights SDP claims?

NO.

ex: craig v. boren, drinking is not a fundamental right

Right to vote how do EP and SDP work together to create this right?

EQP confers substantive right to participate on an equal basis w/ other qualified voters

is there a clear textual anchor for the national right to vote

no

Because there is not a clear textual anchor how does the court evaluate the right to vote?

1. Court hasn't always used SS, even while acknowledging right to vote is fundamental 

   1. This right must be seriously frustrated before SS is invoked 

   2. Mere regulation of right appears to warrant heightened RB review 

what are 3 exceptions to the right to vote?

Citizenship, Age and Residency in district

does the constitution explicitly forbid denying the right to vote for impermissible reasons (race/gender)

As now interpreted, the Equal Protection Clause confers a substantive right to participate in elections on an equal basis with other qualified voters

Reynolds v. Sims

Warren, 1964

1. Apportionment plan resulted in voter dilution in AL legislature because they didn’t update

2. RULE: "One Person, One Vote" is required - Equal protection clause requires BOTH houses of state legislature to be apportioned strictly on the basis of population 

   1. Too difficult to oversee other methods of apportionment

   2. Weighing one person's vote more than another is not aligned with fundamental ideals of democratic government

   3. Facial challenge to mal-apportioned legislature; challenge successful 

Harper v. VA Bd of EDU

Douglas 1966

1. Poll tax was prohibited in 24th in federal elections, but VA used it in other elections

2. RULE: Poll taxes are not allowed as qualification for state elections = Strict Scrutiny

   1. The state's interest in voting is limited to fixing qualifications which can only be based on factors that promote intelligent use of the ballot

   2. Wealth, race, creed, color = not germane to one’s ability to vote - "Voter qualif have no relation to wealth nor to pay or not paying this or any other tax.”

   3. Facial challenge to poll tax in state elections; challenge successful 

Bush v. Gore

5-4 per curiam 2000

held: recounting votes without a set of uniform standards violates EP

right to access justice what is the gen rule

GENERAL RULE: Fees as a requirement are ordinarily examined for rationality

right to access justice, what are the exceptions to the gen rule

1. right to vote/run as candidate can’t be limited to those who pay for license

2. Access to judicial processes in cases criminal can NOT turn on ability to pay

Griffin v. illinois

Black, 1956

1. Convicts sought copy of criminal record, which required to appeal.  Could not afford fees

2. RULE: State Appellate Court is not required under the Constitution - HOWEVER, if it exists, it cannot discriminate against some defendants on the basis of their poverty

   1. ability to pay costs does NOT bear a rational relationship to the D's guilt/innocence

   2. ability to pay costs can NOT be used as an excuse to deprive a D of a fair trial and there's NO meaningful distinction between a rule denying the poor right to defend themselves in trial court and a rule denying the poor adequate appellate review

   3. "In criminal trials, a state can no more discriminate on account of poverty than on account of religion, race, or color...There can be no equal justice where the kind of trial a man gets depends on the amount of money he has."

Douglas v. CA

Douglas, 1963

1. indigent criminal D’s right to counsel paid for by state for appellant's representation

2. RULE: Where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, an unconstitutional line is drawn between rich and poor

MLB v. SLJ

Ginsburg 1996

1. MLB's parental rights were terminated b/c she couldn’t afford trial transcript to appeal 

2. Does NOT allow states to deny appeals for inability to pay for crim convictions /"quasi-crim" 

3. RULE: Fee requirements are usually evaluated under rational basis with 2 exceptions: (1) voting/affording a license and (2) access to judicial process

4. HELD: Termination of parental rights falls into the exceptions to rational basis review

   1. Decrees which forever terminate parental rights are in the narrow category of civil cases in which a state may not "bolt the door to equal justice" by requiring a party to be able to pay in order to have access to the justice system

   2. B/c of family nature of situation, and unique type of deprivation that would result (separation of children from mother), court invalidated requirement of paymen

Right to travel, Saenz v. Roe

Stevens 1999

1. CA law restricted welfare benefits of new arrivals to those received in their previous state of residence for 1 year

2. HELD: Right to Travel falls under Privileges and Immunities of 14th Amendment

   1. Stevens notes that Slaughter-House does recognize a right to travel in its limited view of P/I of 14th Amendment

3. RULE: 3 Aspects to Right to Travel: (1) right to enter one state and leave another; (2) The right to be treated as a welcome visitor rather than a hostile stranger; (3) For those who want to become permanent residents, right to be treated equally to native-born citizens.

   1. CA statute violated the third protection

   2. While plaintiffs were new to the state of California, they had the right to be treated the same as long-time residents, especially given that their need for welfare benefits was unrelated to the amount of time they had spent in the state

4. This is sort of out-of-the-blue 14th Amendment P/I claim (especially since the body of law had used equal protection for this previously)

is there a right to edu?

no, not today, no longer fundamental

San Antonio ISD v. Rodriquez

Powell, 1973

1. School funded by property taxes - high-income neighborhood schools were better funded than low-income neighborhood schools

2. RULE: "Fundamental" is ONLY determined by whether it is explicitly or implicitly guaranteed in Con; thus, majority is attempting to get rid of 3rd leg of  stool, i.e., Reason.

   1. importance of service performed by state doesn’t determine whether it must be regarded as fundamental for purposes examination under EPC (rebuttal to Brown)

3. Education NOT fundamental/quasi-fundamental right, Poor NOT suspect/quasi class = RB

   1. Poor families not necessarily clustered in poorest property districts + no absolute deprivation of desired benefit + not enough I's = NOT suspect class

   2. Education is not afforded explicit or implicit protection under Constitution 

4. Relative deprivation: going to worse schools but still going to school

5. WATERSHED CASE: case marks the transition from the Warren Court to the Burger Court

   1. Warren court recognized at least potential of treating the poor as a suspect class and "necessities" as a fundamental right (i.e. Griffin, Douglas (access to justice cases))

   2. Burger court does not recognize the poor as even a quasi-suspect class

6. Marshall Dissent: Criticizes 2-Tier approach - favors a sliding scale of scrutiny

majority tries to put EP cases into 1 of 2 categories, but there is no such easy categorization (before Craig v. Boren)