Wealth, Equal Protection, and Due Process

By Garrett, Brandon L. | William and Mary Law Review, November 2019 | Go to article overview

Wealth, Equal Protection, and Due Process


Garrett, Brandon L., William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                                 400   I. WEALTH AND SECTION 1 OF THE FOURTEENTH      AMENDMENT                                               406      A. Procedural Due Process                               408      B. Wealth and Equal Protection                          411      C. Equal Protection and Due Process                     416         1. The Bearden Ruling                                417         2. Access to Justice and Other Equal Process Cases   420         3. Equal Protection and Substantive Due Process      422  II. FINES, FEES, AND EQUAL PROCESS                          424      A. Litigation Challenging Pretrial Detention            424      B. Litigation Challenging Fines and Fees                428         1. Due Process Reasoning and Driver's License            Suspensions                                       431         2. Equal Process Reasoning and Driver's License            Suspensions                                       432         3. Fines and Fees Litigation                         434         4. Fines, Fees, and Voting Rights                    437      C. DOJ Pattern and Practice Litigation                  438 III. TOWARDS A NEW EQUAL PROCESS                             440      A. Supreme Court Failures to Apply Equal Process        440         1. Same-Sex Marriage and Equal Process               441         2. Lack of Process and Trump v. Hawaii               443         3. Equal Process and Abortion Rights                 444      B. Challenging Status and Inequality                    445         1. Equal Process and Process Theory                  446         2. Access to Justice                                 447 CONCLUSION                                                   450 

INTRODUCTION

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. Most prominent, perhaps, was the discussion in Obergefell v. Hodges in Justice Anthony Kennedy's majority opinion of the "profound" connection between equality and due process. (1) The Court relied on prior cases in making such a connection explicit. Those included fundamental rights equal protection cases, such as Zablocki v. Redhail, involving the right to marry, as well as cases such as Lawrence v. Texas, involving findings of animus, in which rational basis review has had "teeth." (2) Few noticed, however, that the Obergefell Court began its discussion of equality and due process by citing to a seemingly inapposite line of cases that includes Bearden v. Georgia. (3) In Bearden, in an opinion by Justice Sandra Day O'Connor, the Court held that the trial judge could not revoke a defendant's probation for failure to pay a fine and victim restitution without making findings that either he had the ability to pay or that alternative forms of punishment would not satisfy state interests. (4) The Bearden Court explained that where the state judge both used inadequate process, and, as a result, disparately subjected the poor to imprisonment, "[d]ue process and equal protection principles converge in the Court's analysis." (5) What does a ruling about probation and criminal fines have to do with marriage equality? In this Article, I describe how the reliance on the neglected Bearden ruling in Obergefell was no accident. The approach in Bearden, long considered marginal and relevant only to certain access-to-courts issues, now lies at the center of the jurisprudence of wealth inequality under the Constitution. (6)

This Article explores the constitutional intersection between equality and procedural due process. The Equal Protection Clause provides that no state shall deny to a person "the equal protection of the laws." (7) The Supreme Court has held that this prohibition on discrimination bars a state from "punishing a person for his poverty," (8) and it has condemned the "evil" of "discrimination against the indigent. …

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