Justifying Motive Analysis in Judicial Review

Article excerpt

ABSTRACT

Motives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or "designed to strike" at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the targets of derision or denigration. Difficulties emerge, along with some potentially generative possibilities, in a set of cases which includes U.S. Department of Agriculture v. Moreno, Cleburne v. Cleburne Living Center, and arguably Romer v. Evans and Lawrence v. Texas. Those cases involve neither suspect classes nor fundamental rights, yet in each case, the Court invalidated political branch action on grounds of more general destructive motives. Perhaps it is this broader normative concern that undergirds motive law in general.

Can motive analysis be justified in this set of cases on consequentialist grounds? Or is the only explanation deontological-that such actions are wrong in themselves, regardless of their consequences? Doubts about consequentialist justification are legitimate. In cases involving more ordinary interests, normally consigned to rational basis review, almost any set of consequences will be accepted by courts unless an illegitimate motive is found. Thus the deep concern seems to be with some inherently morally tainting property of illicit motives, not with the consequences of such motives. Despite these appearances, this Article argues that consequentialism is the moral theory best fitting these cases. Along the way, it explores other neglected issues connected with motive analysis, including whether judicial motive talk is inevitably about mental states, and the extent to which government actions can be prohibited based on the psychic harm caused by expression without unduly restricting the ability of governments to speak.

INTRODUCTION ................................................. 193

I. CURRENT DOCTRINE AND OPEN QUESTIONS ....................... 202

A. Arlington Heights ........................................ 202

1. What Are Illegitimate Motives? .......................... 206

B. Pervasiveness of Motive as Part of Open Textured Constitutional Rules .................................................. 210

II. BASIC ISSUES OF JUSTIFICATION: CHOICE OF MORAL PHILOSOPHY ..... 217

A. The Need for External Principles ............................ 217

B. Consequentialism Versus Deontology ........................ 220

III. HOW MIGHT MOTIVE ANALYSIS BE JUSTIFIED ON CONSEQUENTIALIST GROUNDS? ................................................. 223

A. The Plausible Consequentialist Underpinnings of Heightened Scrutiny and of Typical Motive Cases ................................ 223

1. Let Us Ask Why Reasons and Then Ask Why Motives ....... 224

B. Atypical Cases ........................................... 228

1. U.S. Department of Agriculture v. Moreno, Romer v. Evans, and Similar Cases ..................................... 230

2. Some Apparently First-Party Rational Basis Claims Raising Third-Party Standing Issues ............................. 232

IV. JUSTIFICATION FOR INVALID ATIONS BASED ON ATYPICAL ILLEGITIMATE MOTIVES: THE PROBLEM OF ALTERNATIVE REASONS ............... 235

A. The Problem of the Weight of the Least Protected ("Ordinary") Individual Liberty, Property, and Equality Interests ............. 236

B. The Problems of the Correlation of Illegitimate Motives with the Lack of Sufficient Middle Weight Regulatory Reasons Sufficient to Overcome Ordinary Individual Liberty, Property, and Equality Interests . …