How does the Supreme Court use the Equal Protection Clause to attack discrimination today?
About this video
The video explains that the modern Supreme Court handles discrimination claims through the Equal Protection Clause, even though all laws make distinctions. Laws tend to be discriminatory if a distinction is irrelevant to the purpose of a right or is based on an innate characteristic, and race-based laws receive strict scrutiny under the Court's tiers of scrutiny.
You'll be able to
- explain why not every legal distinction counts as discrimination.
- name the two signs the Court uses to spot discriminatory laws.
- explain why race-based laws receive strict scrutiny.
Key words
- Equal Protection Clause
- The part of the 14th Amendment the modern Court uses to decide all questions of discrimination.
- innate characteristic
- A trait about you that you cannot change, such as skin colour.
- tiers of scrutiny
- Levels of review the Court uses to decide how carefully to examine a law that makes a distinction.
- strict scrutiny
- The toughest level of review, applied to laws that distinguish by race; most such laws are invalid.
- suspect classification
- A distinction, like race, that the Court automatically treats with suspicion.
Transcript
The way the Modern Supreme Court treats all questions of discrimination today is through the Equal Protection Clause. The problem is all laws make distinctions. Why do you have certain regulations of guns? Some people want guns without those particular regulations. Should marriage be defined as between a man and a woman, for example? These are laws that seem to regulate rights, but not all regulations of rights are discrimination.
Laws make distinctions all the time. The question is, which distinction is a discrimination prohibited by the 14th Amendment? That's the question at the heart of modern 14th Amendment doctrine. The Supreme Court has come up with a number of heuristics or rules of thumb, so to speak, to address these questions. The fundamental idea is that if a government law or a regulation is irrelevant to the purpose of a right, or if it makes a distinction on the basis of some innate characteristic, a characteristic about you that you can't change, then those tend to be discriminatory laws. For example, a law that says, black persons can't enter into contracts, or can't own property, like the Black codes did after the Civil War, that is a quintessential, a central example of discrimination.
Why? Because skin color is innate, no one can change it, it's inherent, and it is totally irrelevant to the purpose of contract rights or property rights. What the Supreme Court has done is it has created a series of what are called tiers of scrutiny. The Supreme Court has said that if a law makes a distinction on the basis of race, that is automatically suspect, and the courts will strictly scrutinize that law to make sure it is not invidiously discriminatory, to make sure it's not bad discrimination. Why? Because skin color is innate, it's inherent. You can't change it. Usually, it's irrelevant to the purpose of any right. It's irrelevant to marriage, it's irrelevant to schooling, it's irrelevant to contracts,
it's irrelevant to property rights. It also turns out there is a long history of discrimination on the basis of race. Therefore, the Supreme Court has said, any law that purports to distinguish on the basis of race gets strict scrutiny. Now, this means that most race based classifications are invalid, or automatically unconstitutional.
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