Was Cleburne an Accident

Abstract

City of Cleburne v. Cleburne Living Center is a seminal case. It marked the last time the Supreme Court performed a serious analysis of whether a group should be denominated a suspect class, and thus receive heightened judicial protection from discrimination. At the same time, its application of a heightened variant of rational basis review, and its conclusion that the challenged government action was based in “irrational prejudice,” has generated three decades of academic and judicial speculation about the conditions under which such heightened rational basis review would or should be performed. Cleburne has also served as a font of the Court’s emerging “animus” doctrine, which has been at least responsible for, among other things, the remarkable string of victories gay rights plaintiffs have won at the Court over the last two decades.And yet, important parts of this consequential case may have been accidents – that is, they may have emerged as consequences not intended by a majority of the justices. Examination of several justices’ papers reveals that the majority originally planned to decide only the suspect class question, and to remand the case to the lower court for application of rational basis review. It was only late in their deliberations – and late in the 1984-85 term – when Justice White, the author of Cleburne, was prevailed upon to add the final substantive section of what became the majority opinion, which performed the rational basis review it had called for, and struck down the government’s action on that basis.Those papers also reveal a late-erupting dispute between Justices White and Powell over whether that rational basis analysis ought to have resulted in a decision striking down the Cleburne ordinances on their face, or merely as applied to the plaintiffs’ particular group home. The resolution of that dispute ostensibly in favor of the latter approach helped create the more stringent, record-based, tone of the majority opinion’s rational basis analysis. Thus, the as-applied nature of the decision – a decision Justice White defended as allowing municipalities more leeway to regulate – helped color the opinion’s tone in a way that has since been interpreted as imposing stricter judicial review.This Article examines the publicly-available justices’ papers to recount their deliberations in Cleburne and to consider what those deliberations tell us, not just about the case, and not just about equal protection, but about constitutional law doctrine and legal doctrine more generally. In addition to revealing and investigating the “accidents” described above, the Article also explains how the phenomena described here can have important impacts on the path of legal doctrine. This is especially true when the text – the opinion – tells a superficially logical but misleading story, as Cleburne does. For these reasons, it is both revealing and important to revisit the scene of Cleburne’s accidents.