Temple Political & Civil Rights Law Review
suspect classification, suspect class, equal protection doctrine, judicial review
This Article contends that the linguistic structure of equal protection doctrine has played a major role in shaping and influencing its evolution and development. To show how linguistic structure shapes substantive legal discourse, this Article will examine a fundamental question that deals with equal protection law: when should the Court subject a law to heightened judicial scrutiny? Typically, when dealing with equal protection challenges to governmental action, the Court will generally defer to legislative judgment, presume the constitutionality of the legislation, and uphold the statute. However, under some circumstances, the Court will remove the presumption of constitutionality and subject certain legislation to rigorous, skeptical judicial scrutiny.
In some cases, the Court has justified heightened judicial scrutiny of legislation whenever the government has employed a suspect classification; i.e., when the government has classified on the basis of a suspect trait. In other cases, the Court has contended that heightened judicial scrutiny is justified whenever the government enacts legislation that discriminates to the disadvantage of a suspect class. So, when does the Court apply heightened judicial scrutiny? Does it apply heightened scrutiny when a law employs a suspect classification, or does it apply heightened scrutiny when a law discriminates against a suspect class? The thesis of this Article is that, even though courts, lawyers and scholars have failed to recognize the differences between the two terms, the actuality is that a suspect classification is substantively different from a suspect class. The term suspect classification refers to traits or characteristics, while the term suspect class refers to vulnerable political groups.
Oh, Reginald, "A Critical Linguistic Analysis of Equal Protection Doctrine: Are Whites a Suspect Class" (2004). Law Faculty Articles and Essays. 1020.